Intl. Baking Co. & Earthgrains

National Labor Relations Board - Board Decisions

Nov 22, 2006

348 N.L.R.B. 1133 (N.L.R.B. 2006)

INTERNATIONAL BAKING CO. & EARTHGRAINS
348 NLRB No. 76
1133
Sara Lee d/b/a International Baking Company and
Earthgrains and Freight, Parcel, Bakery, Dairy,
Meat, Poultry and Factory Workers in the Los
Angeles Metropolitan Area; General Truck
Drivers, Warehousemen and Helpers Los Ange-
les, San Bernardino, Riverside Counties, Cali-
fornia; Agricultural and Related Product Work-
ers in the California Counties of San Diego, Im-
perial, Orange, Alameda, Los Angeles, San Ber-
nardino, Ventura, Santa Barbara, Kern, San
Luis Obispo, Tulare, Kings, Monterey, San
Benito, Fresno and Merced, Local 63, Interna-
tional Brotherhood of Teamsters1 and Bakery,
Confectionary, Tobacco Workers and Grain
Millers International Union, Local 37, AFL–
CIO, CLC and Martin Sanchez. Cases 21–CA–
36154, 21–CA–36155, 21–CA–36180, 21–CA–
36491, and 21–CA–36201
November 22, 2006
DECISION AND ORDER
BY CHAIRMAN BATTISTA AND MEMBERS LIEBMAN
AND SCHAUMBER
On July 29, 2005, Administrative Law Judge Lana H.
Parke issued the attached decision. The Respondent, the
General Counsel, and the Bakery, Confectionery, To-
bacco Workers and Grain Millers International Union,
Local 37, AFL–CIO, CLC (Local 37) filed exceptions
and supporting briefs. The Respondent filed answering
briefs to the Charging Party’s and the General Counsel’s
exceptions and the General Counsel filed a reply brief.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the decision and the record
in light of the exceptions2 and briefs and has decided to
affirm the judge’s rulings, findings,3 and conclusions as

1 We have amended the caption to reflect the disaffiliation of the In-
ternational Brotherhood of Teamsters from the AFL–CIO effective July
25, 2005.
2 No exceptions were filed to the judge’s dismissal of allegations that
the Respondent violated Sec. 8(a)(1) by: threatening employees Martin
Sanchez and Ruben Luna; threatening the likelihood of future union-
called strikes and concomitant job loss if employees selected the Union;
threatening the outsourcing of product delivery if employees selected
the Union; and interrogating employee Sanchez. Further, there were no
exceptions to the judge’s dismissal of the allegation that the Respon-
dent violated Sec. 8(a)(3) by discharging employee Guadalupe Arteaga.
3 The Respondent, the General Counsel, and Local 37 have excepted
to some of the judge’s credibility findings. The Board’s established
policy is not to overrule an administrative law judge’s credibility reso-
lutions unless the clear preponderance of all the relevant evidence
convinces us that they are incorrect. Standard Dry Wall Products, 91
NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have care-
fully examined the record and find no basis for reversing the findings.
modified4 and to adopt the recommended Order as modi-
fied and set forth in full below.5
We agree with the judge, for the reasons set forth in
her decision, that the Respondent violated Section 8(a)(1)
of the Act by interrogating employees, creating an im-
pression of surveillance, threatening the outsourcing of
work because of the Union, and threatening reprisals for
union activity.6
However, we find merit in the Respondent’s conten-
tion that the General Counsel’s failure to amend the
complaint to include the violations allegedly committed
by Logistics Manager Jesse Medina precludes considera-
tion of them here. Further, as explained below, we find,
contrary to the judge, that: Supervisor Sara Dominguez
did not impliedly threaten an employee that supporting
the Union would harm the employee’s pay and seniority;
Supervisor Manuel Arteaga did not unlawfully equate
voting for the Union with disloyalty to the Respondent;
and Human Resources Director Irma Elioff did not im-
pliedly promise to continue a flexible discipline policy if
employees rejected the Union, or impliedly threaten em-
ployees with a strict discipline policy if they selected the
Union.
Although we adopt the judge’s finding that Elioff’s
statements to an employee at an unemployment hearing
did not violate Section 8(a)(1), we do so for the reasons
set forth below. Finally, as explained below, we adopt
the judge’s findings that the Respondent did not violate
Section 8(a)(3) by warning and suspending employee
Felipe Serrano for engaging in union activity,7 or by sus-
pending and discharging employee Maria Zarco.8
I. FINDINGS REGARDING SUPERVISOR JESSE MEDINA
The judge found, based on testimony elicited by the
General Counsel at the hearing, that Logistics Manager

4 Pursuant to Reliant Energy, 339 NLRB 66 (2003), Charging Party
Local 37 was permitted to call to the Board’s attention its recent deci-
sions in U-Haul Co. of California, 347 NLRB 375 (2006); Nordstrom,
Inc., 347 NLRB 294 (2006); and Longs Drug Store California, Inc.,
347 NLRB 500 (2006).
5 We shall modify the judge’s recommended Order to conform to the
violations found. We shall also substitute a new notice in conformity
with the Order as modified.
6 In adopting the judge’s finding that Supervisor Arturo Arteaga
unlawfully threatened employee Guadalupe Arteaga, Chairman Battista
notes that the Respondent excepted to the judge’s finding only on the
basis of her credibility resolutions.
7 We correct the judge’s inadvertent error in stating that the Respon-
dent discharged Serrano.
Because, as discussed below, we do not find that Supervisor Jesse
Medina unlawfully warned employee Felipe Serrano not to invite other
employees to a union meeting, we do not adopt the judge’s finding that
the Respondent violated Sec. 8(a)(1) by including this incident in
Serrano’s final notice.
8 We find, as discussed below, that Zarco’s suspension and discharge
did not violate Sec. 8(a)(1), (3), or (4) of the Act.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1134
Medina unlawfully interrogated employees concerning
the Union, impliedly threatened employee Guadalupe
Arteaga with unspecified reprisals, solicited employee
Serrano to find out who supported the Union, and warned
Serrano not to invite other employees to a union meeting,
all in violation of Section 8(a)(1). Although none of
these allegations was alleged in the complaint or added
as amendments at the hearing, the judge nonetheless
found Medina’s conduct unlawful on the basis of her
view that it was “closely connected” to the subject matter
of other complaint allegations and was fully litigated.
The Respondent excepts, arguing that it had no notice
that Medina’s conduct was at issue. The Respondent
contends that the General Counsel’s failure to amend the
complaint deprived the Respondent of notice that Me-
dina’s conduct was at issue, and prevented it from fully
defending against these allegations. Although the Re-
spondent acknowledges that it called Medina as a witness
to testify, it contends that it did so to address matters
specifically alleged in the complaint. The Respondent
argues that it questioned Medina only briefly on some,
but not all, of the issues involving the unalleged 8(a)(1)
violations, and that it would have adduced comprehen-
sive testimony from Medina on those issues had the
General Counsel amended the complaint. We find merit
in the Respondent’s argument.
As noted above, the complaint did not allege that Me-
dina engaged in any conduct violative of Section 8(a)(1).
Although the complaint did allege several 8(a)(1) viola-
tions, those allegations were against other persons and
were very precise. The complaint specifically identified
the supervisors or agents who allegedly committed the
unlawful acts, detailed when those acts allegedly oc-
curred, and described the substance of those acts. The
complaint listed 12 separate allegations of such miscon-
duct by 5 supervisors or agents. Not a single one of
these detailed complaint allegations named Medina as
having committed any such act. Moreover, the General
Counsel moved to amend the complaint on another mat-
ter at the hearing, but made no such motion with respect
to any conduct allegedly engaged in by Medina. Nor did
the General Counsel argue, in her brief to the judge, that
Medina committed any violations. The Respondent, not-
ing that the General Counsel had not amended its com-
plaint with respect to Medina, stated in its brief to the
judge that it would not address Medina’s conduct. De-
spite this, the judge found that Medina’s conduct violated
the Act.
Due process requires that a party be on notice of the
General Counsel’s contentions. See generally Mine
Workers District 29, 308 NLRB 1155, 1158 (1992). The
Respondent, however, did not receive such notice. By
virtue of the allegations in the complaint and amended
complaint, and the position of the General Counsel at the
hearing, the Respondent had no notice that Medina’s
conduct was in issue, until the judge, sua sponte, found
these violations in her decision. In the circumstances of
this case, with multiple allegations concerning conduct
by various personnel, the Respondent was entitled to
know, during the course of the litigation, what conduct
the General Counsel contended was unlawful so that it
could offer rebutting evidence. Here, the complaint does
not mention Logistics Manager Medina, although it lists
five other individuals, including one also with the last
name of Medina, but who was not related to the logistics
manager. The complaint distinctly lists the offending
persons and the conduct in which those persons allegedly
engaged. There is no apparent relationship between any
of this conduct and that purportedly engaged in by Me-
dina. Because the General Counsel failed to place the
lawfulness of the statements attributed to Medina at is-
sue, the Respondent was deprived of the opportunity to
adequately address the questions.9 We cannot conclude,
therefore, that the issues involving Medina were fully
and fairly litigated, and thus we cannot find that Me-
dina’s conduct violated the Act.10
II. THE ALLEGED 8(a)(1) STATEMENTS
The Respondent manufactures bakery products at its
Vernon, California facility where it employed between
18–20 shipping and receiving employees and 11 delivery
drivers. In 2002, Local 37 conducted a representation
campaign among the Respondent’s shipping and receiv-
ing employees, culminating in a Board-conducted repre-
sentation election, which Local 37 lost. In early spring
2003, the Teamsters (the Union) commenced an organ-
izational campaign among the Respondent’s drivers.11
The Union filed a representation petition in September
and won the October 16 election by a vote of seven to
four.
A. In September, Supervisor Sara Dominguez told
employee Guadalupe Arteaga that “the Union wasn’t a
good thing. That it wasn’t right. That [he] was one of
the most senior drivers there with more time there.”
Dominguez further told Arteaga that Arteaga was mak-
ing decent money, that the Union would harm him, and
that it would be better for him not to sign a union card.

9 For example, as discussed above, the Respondent did not believe it
was even necessary to address Medina’s statements in its brief to the
judge.
10 See generally Aljoma Lumber, 345 NLRB 261, 263 (2005) (alle-
gation involving different individuals from those listed in complaint
insufficiently related to warrant consideration).
11 All dates hereafter refer to 2003, unless otherwise indicated.
INTERNATIONAL BAKING CO. & EARTHGRAINS 1135
The judge found that Dominguez impliedly threatened
Arteaga with unspecified reprisals if he supported the
Union. She found that the statements violated Section
8(a)(1) of the Act because they conveyed a message that
union support would negatively impact Arteaga’s senior-
ity and pay.
We disagree, and find that Dominguez was merely ex-
pressing her lawful opinion concerning the effects of
unionization on the employees.
Section 8(c) provides that “[t]he expressing of any
views, argument, or opinion . . . shall not constitute or be
evidence of an unfair labor practice . . . if such expres-
sion contains no threat of reprisal or force or promise of
benefit.” “Intemperate” remarks that are merely expres-
sions of personal opinion are protected by the free speech
provisions of Section 8(c). Sears, Roebuck & Co., 305
NLRB 193 (1991).
We find that Dominguez’ remark did not rise to the
level of unlawful conduct. Dominguez’ comments
amounted to nothing more than an expression of her per-
sonal belief that Arteaga did not need the Union and
would not benefit from it. Such a statement is no differ-
ent in kind from one in which an employer lawfully tells
employees there is no need to call a union in to resolve
issues.12
For the same reason, we disagree with the judge that
the Respondent violated Section 8(a)(1) when, 1 or 2
days before the election, Supervisor Manuel Arteaga
admonished employee Martin Sanchez not to “do wrong
by us” in the upcoming vote. The judge found the state-
ment unlawful because, in her view, it equated loyalty to
the Company with opposition to the Union and suggested
that voting for the Union would “wrong” the Respon-
dent.
We disagree. As explained above, Manuel Arteaga’s
statement urging Sanchez not to “do wrong by us” was a
lawful expression of the supervisor’s opinion on the dis-
advantages of unionism and did not impart a threatening
meaning.13
B. Prior to the October election, the Respondent held
three meetings with its drivers concerning the upcoming
union election. At the meetings, Human Relations Direc-
tor Elioff told employees that in the event they were even
5 minutes late getting to work “unfortunately under a
union contract if there is a disciplinary procedure in that

12 See, e.g., Howard Johnson Co., 242 NLRB 386 (1979) (telling
employees that the company was convinced they did not need a union
because it would “only make things more difficult for all of us” not
violative, since it “merely sets forth [the employer’s] views on the
disadvantages of unionism and does not impart a threatening mean-
ing”).
13 Howard Johnson Co., supra.
union contract we would not have the luxury of deviating
from it because we end up with union grievances as a
result of it.”
The judge found that Elioff’s statement carried with it
both an implied promise (continuation of the current,
presumably flexible, disciplinary approach if the drivers
rejected the union) and an implied threat (conformity to
strict disciplinary proceedings if the drivers chose union
representation). Accordingly, she found that Elioff’s
statement regarding the potential impact of a contractual
disciplinary procedure violated Section 8(a)(1). We dis-
agree.
Generally, an employer does not violate the Act by in-
forming employees that unionization will bring about “a
change in the manner in which employer and employee
deal with each other.” Tri-Cast, Inc., 274 NLRB 377
(1985). An employer may lawfully tell its employees
that its freedom to deal directly with them will be con-
strained if they choose union representation. This is es-
pecially so, where, as implied in Elioff’s statements, the
change would be as the result of a negotiated collective-
bargaining agreement. The fact that such a statement
might tend to discourage union support among employ-
ees who prefer to deal with their employer on an individ-
ual basis, does not render the statement unlawful.14 Ac-
cordingly, we find that Elioff’s remarks were protected
under Section 8(c) of the Act and we shall dismiss this
complaint allegation.
C. The Respondent discharged Guadalupe Arteaga on
January 12, 2004.15 Following his discharge, Guadalupe
Arteaga filed for unemployment benefits with the State
of California. Employee Felipe Serrano testified at the
unemployment hearing in support of Guadalupe Arteaga.
During her cross-examination of Serrano at the hearing,
Human Resources Director Elioff asked Serrano if he
was on “final warning status.” According to Elioff, she
asked the question essentially to show potential bias on
Serrano’s part.
The judge found that such a question could be viewed
as a reminder to Serrano that he was on shaky discipli-
nary grounds with the Respondent and that he had better
be careful as to how he testified. The judge noted, how-
ever, that Elioff asserted that her intent was solely to

14 Elioff did not say that stricter discipline would be imposed under a
union contract. She said that if there were a union contract calling for a
certain procedure, and if the Respondent deviated from it, there might
be a union grievance. Thus, our colleague vastly over-reads the state-
ment.
Nor was there a promise of benefit. The Respondent was simply ob-
serving that the present regimen of flexibility would obtain if the Union
lost the election.
15 As noted above, no party excepted to the judge’s finding that the
discharge did not violate Sec. 8(a)(3) of the Act.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1136
bring to the unemployment judge’s attention that Serrano
arguably had reason to be disgruntled with the Respon-
dent. Accordingly, she dismissed this allegation of the
complaint.
The General Counsel excepts, contending that by rely-
ing on Elioff’s subjective intent, the judge applied the
wrong standard in evaluating the legality of Elioff’s
questioning of Serrano. We agree. The test for deciding
whether a statement constitutes a threat of unspecified
reprisal is whether it reasonably tends to coerce employ-
ees in the exercise of their statutory rights. See, e.g.,
Exterior Systems, 338 NLRB 677, 679 (2002). Applying
that test here, we find that Elioff’s asking Serrano
whether he was on “final warning status” would not lead
an employee reasonably to believe that he was being
coerced, but rather that his credibility was being legiti-
mately questioned. Moreover, we note that the question
merely elicited an indisputable fact. Because Serrano
was in fact on final warning status at the time of the un-
employment proceeding and the Respondent had the
right to establish this fact with reference to his credibil-
ity, Elioff’s question was lawful. Accordingly, we find
that Respondent did not violate Section 8(a)(1) by threat-
ening Serrano.
III. SUSPENSION AND TERMINATION OF
EMPLOYEE MARIA ZARCO
In 1994, the Respondent hired Maria Zarco. Employee
Auria Chavez had requested that Sara Dominguez, a su-
pervisor in the human resources office, hire Zarco, who
was Chavez’ sister. Then and later, Dominguez social-
ized with Chavez and other employees who described
themselves as Zarco’s sisters and Mexican nationals.
Zarco served as Local 37’s observer at the election
held in 2002. In August 2003, Zarco testified exten-
sively in a Board unfair labor practice and objection
hearing concerning that election.
All of the Respondent’s employees, including Zarco,
were required by Federal law to provide the Respondent
with employment authorization documents. The Re-
spondent maintained a “tickler” system designed to alert
the human resources department monthly of work per-
mits due to expire within 90 days so that the staff could
remind employees to renew their permits. In January
2004, while reviewing the tickler files, Elioff noticed that
Zarco’s work permit was due to expire in 90 days. Ac-
cording to her regular business practice, Elioff reviewed
Zarco’s permit which listed Guatemala as her country of
origin.16 Believing Zarco to be from Mexico and not
from Guatemala, Elioff decided to investigate.

16 Copies of Zarco’s work permit from 1998–2004 showed the coun-
try of birth as Guatemala. Dominguez, who reviewed Zarco’s previous
Meanwhile, as described above, on January 12, 2004,
the Respondent lawfully terminated Guadalupe Arteaga.
The next day, employee Hector Magana, in the presence
of Supervisor Manuel Arteaga, asked Zarco if she in-
tended to support Guadalupe Arteaga in his expected
protest against his discharge. Zarco answered that Gua-
dalupe’s assertions against Supervisor Arturo Arteaga
were true. The following day, Elioff pointed out to
Zarco the word “Guatemala” on Zarco’s work permit and
said “But we all know you are from Mexico.” Zarco
replied that she had “fixed” her papers like a lot of other
people by saying that she was from Guatemala.17 Elioff
told Zarco not to tell her anything more that would re-
quire her to terminate Zarco. She suspended Zarco and
told her to come back in a week with a letter from the
Immigration and Naturalization Service (INS) correcting
the error.
Later that day, Zarco wrote a letter supporting Guada-
lupe Arteaga’s version of the events leading to his dis-
charge. Subsequently, an assistant to Zarco’s immigra-
tion lawyer sent the Respondent a letter referring to
Zarco as a native of Guatemala but failing to address the
accuracy of that information. Elioff told Zarco and her
attorney that the letter was insufficient and that the Re-
spondent required a letter from the INS rectifying the
error on Zarco’s work permit to correctly read that Zarco
was from Mexico. No such letter was provided. On
January 22, 2004, the Respondent terminated Zarco.
Elioff told Zarco that the company attorneys had decided
she should be fired and that the Respondent could not
allow her to work knowing that her work permit was not
legal.
The judge found that Zarco engaged in protected con-
certed activity when she testified at the 2003 Board hear-
ing, that the Respondent knew of her protected concerted
activity, and that Zarco had suffered an adverse employ-
ment action. The judge found, however, that the General
Counsel did not establish the necessary motivational
nexus between Zarco’s protected concerted activity and
the adverse employment action.18 Accordingly, the judge
concluded that the General Counsel failed to establish a
prima facie case that the Respondent suspended and ter-
minated Zarco in violation of Section 8(a)(4) because she
testified at a hearing before the Board.19

work permits, testified she had previously failed to notice that Guate-
mala was named as the country of birth.
17 A consequence of the Nicaraguan Adjustment and Central Ameri-
can Relief Act, 8 U.S.C. § 1101 (NACARA), was that certain Guatema-
lans were eligible for more favorable immigration treatment than Mexi-
can citizens.
18 American Garden Management Co., 338 NLRB 644 (2002).
19 See Wright Line, 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st
Cir. 1981), cert. denied 455 U.S. 989 (1982).
INTERNATIONAL BAKING CO. & EARTHGRAINS 1137
The judge then evaluated whether the suspension and
discharge violated Section 8(a)(1). She found that al-
though the suspension and the termination were not al-
leged as independent 8(a)(1) violations, the issue was
fully litigated and the Respondent’s defense would be the
same as the one it put forth in the 8(a)(4) case.20 The
judge found that Zarco engaged in protected concerted
activity when she wrote a supportive letter for Guadalupe
Arteaga regarding his supervisor’s conduct. The judge
found, however, that the Respondent met its burden of
establishing that it would have suspended and thereafter
terminated Zarco even if she had not engaged in pro-
tected concerted activity. Accordingly, the judge found
that Zarco’s suspension and termination did not violate
Section 8(a)(1) of the Act.
The General Counsel and Local 37 except to the
judge’s dismissal of the 8(a)(4) allegation and to the
judge’s failure to address the complaint’s allegation that
Zarco’s suspension and termination violated Section
8(a)(3). As to the 8(a)(3) allegation, they contend that
Zarco engaged in union activity when she acted as an
observer for Local 37 in the 2002 election and testified
for Local 37 at the Board hearing, that the Respondent
had knowledge of Zarco’s union activity, and that the
Respondent’s numerous 8(a)(1) violations established
animus. The General Counsel and Local 37 further as-
sert that in light of the Respondent’s virulent and endur-
ing antiunion campaign, the record amply demonstrates a
nexus between Zarco’s union activity and her discharge.
We agree with the General Counsel that the judge
should have specifically considered the complaint’s alle-
gation that Zarco’s suspension and discharge violated
Section 8(a)(3) of the Act, but we find her omission to be
nondeterminative. Thus, assuming arguendo that the
General Counsel established a prima facie case that the
Respondent violated Section 8(a)(1), (3), and (4) of the
Act by suspending and discharging Zarco, we find, as did
the judge, that the Respondent met its burden of showing
that it would have taken this action regardless of her pro-
tected activity, union activity, and participation in Board
proceedings. That is, the Respondent met its burden of
showing that it would have suspended and terminated
Zarco for having an improper work permit. The Respon-
dent established that it was responsible for seeing that
Zarco possessed acceptable documentation of authoriza-
tion for employment in the United States. Also, the ap-
parent discrepancy in Zarco’s country of origin was dis-
covered in the regular course of Elioff’s practice of re-

20 We find it unnecessary to decide whether the suspension and ter-
mination, considered as independent violations of Sec. 8(a)(1), were
closely related to the complaint allegations and fully litigated because
we conclude that, in any case, those actions were lawful.
viewing work permits. As noted above, the Respondent
consistently maintained a system to review work permits
that were due to expire. Thus, after Zarco informed
Elioff that she had “fixed” her papers to indicate that she
had come from Guatemala rather than Mexico, the Re-
spondent concluded, given an employer’s burden of
compliance under the Immigration Reform and Control
Act of 1986, 8 U.S.C. § 1324 (IRCA), that it risked civil
and/or criminal liability by retaining Zarco, whom it be-
lieved deceptively obtained work authorization. We
therefore find that the Respondent established that it
would have suspended and discharged Zarco even in the
absence of her protected concerted activities.21
Although our dissenting colleague concedes that the
Respondent could take some action with respect to
Zarco, she challenges the discharge decision on the basis
that it was “abrupt” and because it was “implausible”
that an employer would discharge an employee so
quickly in these circumstances. We do not agree. First,
our colleague relies upon the discharge of Arteaga and
the suspension of Serrano. However, as the dissent con-
cedes, the judge found—and we agree—that these two
incidents of adverse action did not violate the Act. Thus,
the Respondent’s lawful conduct with respect to these
other employees does not establish that it was seeking to
rid itself of union adherents or establish union animus.
Nor do we find that the timing of the Respondent’s dis-
charge of Zarco was suspicious.22 When the Respondent
realized, in the regular course of its review of employee
work permits, the apparent discrepancy between Zarco’s
soon-to-expire permit and its understanding of her home
country, the Respondent informed Zarco precisely of
what assurances it needed from her, and provided her
adequate time to obtain counsel to resolve the issue.
Although the dissent contends that there was insufficient
time for Zarco to obtain a corrective letter, the record
shows that the Respondent gave Zarco 8 days to obtain
the letter, i.e., from January 14 to 22. Zarco never asked
for more time based on INS delay or any other reason.
Further, it is well established that the Board does not
substitute its own business judgment for that of the em-
ployer in evaluating whether conduct was unlawfully

21 As the judge found, whether the Respondent was correct in its be-
lief that it risked legal liability by retaining Zarco is not the issue before
the Board. The issue is, rather, whether the Respondent violated the
Act by terminating Zarco. That such a termination may not have been
compelled by immigration laws does not convert the discharge here to a
violation of the Act.
22 Our colleague also attempts to link Zarco’s discharge with an ear-
lier case where the Board found that Elioff had unlawfully discharged
an employee. Yet our colleague concedes that the Respondent did not
violate the Act with respect to the other discharges here, and indeed
agrees that there is no 8(a)(4) or (1) violation here.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1138
motivated.23 Rather, the issue is whether the Respondent
would have discharged Zarco absent her protected activ-
ity. Manno Electric, 321 NLRB 278, 280 fn. 12 (1996),
affd. mem. 127 F.3d 34 (5th Cir. 1997). There is nothing
in the timing of the Respondent’s dealing with Zarco that
raises the inference of unlawful action.
As to the dissent’s claim that it was “implausible” that
the Respondent would have discharged a 10-year em-
ployee with a good work record, the judge specifically
found “no evidence [that] Ms. Elioff ever accommodated
or overlooked any work permit inconsistency, so as to
permit an inference that she treated Ms. Zarco dispar-
ately.” Clearly, the Respondent had a past practice of
reviewing work permits when they were due to expire. It
was in the normal course of this practice that Elioff dis-
covered the inconsistency with regard to Zarco.24
Our dissenting colleague argues that the Respondent
was not required to discharge Zarco. Again, the conten-
tion misses the mark. The issue, as noted above, is not
what the Respondent was required to do. It is whether
the Respondent would have taken the same action even if
the employee had not engaged in protected activity.25 As
to that issue, the Respondent was reasonably concerned
about the immigration status of Zarco. Zarco had lied on
her application form and failed to correct the error
through the appropriate authorities.
Our colleague also argues that the Respondent has
shown no prior discharge for this activity viz lying on
immigration documents and failing to correct this. But
neither has the General Counsel shown that such actions
by others has been tolerated. Further, it is not the law
that an employer can prevail only by showing prior iden-
tical misconduct and discipline.
Finally, the fact that the Respondent indicated that
Zarco had resigned does not establish a discriminatory
motive for the discharge. It is not unusual for an em-
ployer to record that designation, even in a discharge
situation.26
Accordingly, we shall dismiss these allegations.

23 Framan Mechanical, Inc., 343 NLRB 408, 417 (2004) (quoting
Ryder Distribution Resources, 311 NLRB 814, 816 (1993)).
24 The record contains no evidence as to whether a similar situation
had ever arisen at the Respondent’s facility in the past. However, it is
clear that Elioff had only recently begun reviewing the employees’
work authorization cards, a job that had previously been performed by
Sara Dominguez. Dominguez testified that during her yearly reviews
of Zarco’s cards she failed to notice that the cards named Guatemala as
Zarco’s country of origin.
25 Manno Electric, supra.
26 It does not follow that little weight should be given to an em-
ployer’s statement of the reason for a discharge.
ORDER
The National Labor Relations Board orders that the
Respondent, Sara Lee d/b/a International Baking Com-
pany and Earthgrains, Vernon, California, its officers,
agents, successors, and assigns, shall
1. Cease and desist from
(a) Interrogating employees about their or other em-
ployees’ union and other concerted, protected activities.
(b) Creating the impression of surveillance of employ-
ees’ union activities.
(c) Impliedly threatening employees with reprisals if
they continue to engage in union or other protected ac-
tivities.
(d) Attributing the reason for possible outsourcing of
work to employees’ union or other concerted protected
activities.
(e) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
2. Take the following the affirmative action necessary
to effectuate the policies of the Act.
(a) Within 14 days after service by the Region, post at
its plant in Vernon, California, copies of the attached
notice marked “Appendix.”27 Copies of the notice, in
both English and Spanish, on forms provided by the Re-
gional Director for Region 21, after being signed by the
Respondent’s authorized representative, shall be posted
by the Respondent and maintained for 60 consecutive
days in conspicuous places including all places where
notices to employees are customarily posted. Reasonable
steps shall be taken by the Respondent to ensure that the
notices are not altered, defaced, or covered by any other
material. In the event that, during the pendency of these
proceedings, the Respondent has gone out of business or
closed the facility involved in these proceedings, the Re-
spondent shall duplicate and mail, at its own expense, a
copy of the notice to all current employees and former
employees employed by the Respondent at any time
since September 2003.
(b) Within 21 days after service by the Region, file
with the Regional Director a sworn certification of a re-
sponsible official on a form provided by the Region at-
testing to the steps the Respondent has taken to comply.
IT IS FURTHER ORDERED that the complaint is dismissed
insofar as it alleges violations of the Act not specifically
found.

27 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading “Posted by Order of the Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
INTERNATIONAL BAKING CO. & EARTHGRAINS 1139
MEMBER LIEBMAN, concurring in part and dissenting in
part.
I would find one violation of Section 8(a)(1) in addi-
tion to those found by the majority.1 The record estab-
lishes that the Respondent unlawfully threatened to fol-
low a more rigid disciplinary procedure if employees
acquired union representation. Further, given the totality
of this record, I would find that the Respondent has not
overcome the General Counsel’s initial showing that the
Respondent precipitously fired Zarco because of her un-
ion activity by establishing that it would have taken that
action even in the absence of her union activity. Zarco’s
discharge therefore violated Section 8(a)(3).
I. PREDICTION AND THREAT OF A STRICTER
DISCIPLINARY PROCEDURE
On October 16, 2003, Teamsters Local 63 won an
election to represent the Respondent’s drivers. During
the month preceding the election, the Respondent cam-
paigned vigorously against the Union and, as the major-
ity agrees, violated Section 8(a)(1) on multiple occa-
sions.2 The Respondent’s human resources director,
Irma Elioff, was one of the management speakers at

1 I agree with the majority that the violations found by the judge per-
taining to Supervisor Jesse Medina were not sufficiently alleged, but
only on the grounds that the General Counsel neither amended the
complaint to include Medina’s misconduct nor argued these violations
at the hearing or in his brief to the judge, pursuant to Sec. 3(d); nor did
the judge amend the complaint sua sponte at the hearing pursuant to
Sec. 10(b). See Rebel Coal, 279 NLRB 141, 147 (1986); GTE Auto-
matic Electric, 196 NLRB 902 (1972) (Sec. 10(b) authorizes judge to
amend complaint when General Counsel consents “or where evidence
has been received into the record without objection”). I note further
that most of the Medina violations would have been cumulative of
other violations.
I do not reach the complaint allegation that Supervisor Dominguez
threatened Guadalupe Arteaga that the Union would affect him ad-
versely because I find it cumulative of the unsupported prediction by
Human Resources Director Elioff, discussed below, that a stricter dis-
ciplinary system would be imposed if the Union won the election,
which I find was unlawful.
Similarly, I do not reach the complaint allegation that Supervisor
Arteaga’s exhortation to employee Martin Sanchez not to “do wrong by
us” in the election was unlawfully coercive, because it was cumulative
of the Respondent’s other unlawful threats of reprisal.
Finally, I do not agree that the question the Respondent put to em-
ployee Felipe Serrano confirming his final-warning status while cross-
examining him at an unemployment-insurance hearing had no reason-
able tendency to be coercive. I agree, however, that in the setting of an
administrative hearing the Respondent had the right to litigate its case
and to elicit confirmation of an indisputable fact that had an arguable
bearing on Serrano’s credibility. For this reason, the question was not
unlawful.
2 I agree with the majority that the Respondent unlawfully interro-
gated employees, created an impression of surveillance, threatened to
outsource work if the Union won the election, and threatened employ-
ees with reprisal for union activity. Except for the violations of Sec.
8(a)(1) and (3) discussed herein, I agree with the dismissal of the other
complaint allegations.
meetings with employees on the subject of the election.
Among other statements, Elioff told employees that if the
unit was covered by a union contract and a driver arrived
5 minutes late for work, “unfortunately if there is a disci-
plinary procedure in that union contract we would not
have the luxury of deviating from it because we might
end up with union grievances as a result of it.” The ma-
jority finds this to be no more than an accurate and law-
ful observation that under a union contract the Respon-
dent would no longer be free to “deal directly” with em-
ployees.
However, Elioff’s comment went far beyond indicat-
ing that the Respondent would be legally required to deal
with the Union. Elioff clearly indicated that the discipli-
nary procedure in any union contract would preclude
flexibility even to the point of requiring a driver who was
“5 minutes late” to be disciplined, while under the Re-
spondent’s current policy the tardiness would be over-
looked. Elioff stated no basis whatsoever for predicting
the terms of a contract that did not exist, and her state-
ment was therefore not a lawful prediction of the conse-
quences of unionization. See Systems West LLC, 342
NLRB 851, 852 (2004) (employer stated no basis for its
prediction that employees would not qualify as journey-
men or receive a journeyman’s pay under union con-
tract).3 The judge was also correct that Elioff’s statement
was both an implicit promise that the Respondent would
continue its current, purportedly more lenient policy, if
the Union lost the election and an implicit threat that it
would impose discipline more strictly if the Union won.
For all of these reasons, Elioff’s statement violated Sec-
tion 8(a)(1).
II. THE ZARCO DISCHARGE
I also dissent from the majority’s finding that the dis-
charge of Maria Zarco was lawful. The General Counsel
showed that the Respondent acted with antiunion animus,
and the Respondent failed to show that Zarco would have
been discharged even if she had not engaged in union
activity.
Maria Zarco was a 10-year employee with a good re-
cord. At the time of her discharge she worked in the
Respondent’s shipping and receiving department. Zarco
was an observer for Bakery Workers Local 37 in a 2002
Board election in which that Union unsuccessfully at-

3 See also NLRB v. Gissel Packing Co., 395 U.S. 575, 618 (1969).
Both the judge and I reject the claim that Elioff was “merely observing”
that the Union could insist on the letter of its contract and therefore
Elioff’s statement was protected by Sec. 8(c). Under the majority’s
interpretation of Sec. 8(c), an employer lawfully may “observe” that
any manner of strict discipline might befall employees as a result of the
union’s interpretation of its contract, no matter how unfounded or coer-
cive the employer’s speculation.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1140
tempted to organize that unit. Zarco also testified in
support of the Union’s election objections at a hearing in
August 2003. On June 25, 2004, the Board upheld some
of the Union’s objections and found that the Respondent
violated Section 8(a)(1) and (3) in connection with the
election.4
In October 2003, Teamsters Local 63 won an election
to represent the facility’s drivers. The Teamsters’ victory
and the Board’s then-pending order for a new election in
the shipping and receiving unit created the possibility
that two important units at the Respondent’s facility
would soon be unionized.5
Under the Immigration Reform and Control Act of
1986 (IRCA), all of the Respondent’s foreign-born em-
ployees were required to submit documentation, includ-
ing employment authorization cards, on an annual basis
demonstrating their eligibility for employment in the
United States. The Respondent conducted a monthly
review of those documents in order to identify authoriza-
tion cards which were due to expire within 90 days. In
January 2004, while assisting in this monthly review
task, Elioff noticed that Zarco’s workcard would expire
within that timeframe and that it specified Guatemala as
Zarco’s country of origin. Based on her previous con-
tacts with Zarco and other employees, Elioff believed
that Zarco’s true country of origin was Mexico.
Elioff called Zarco to her office on January 14, and
pointed out the apparent discrepancy on her workcard.
The judge credited Elioff’s testimony that Zarco then
admitted that from the time she had first applied for em-
ployment with the Respondent she had “fixed” her pa-
pers “like a lot of other people have” by specifying Gua-
temala as her country of origin.6 Elioff immediately
placed Zarco on suspension without pay and gave her “a
week” to report the “error” on her workcard to the Bu-
reau of Immigration and Customs Enforcement (ICE)7

4 International Baking Co. & Earthgrains, 342 NLRB 136 (2004),
affd. 2006 WL 1737185 (9th Cir. 2006) (unpublished).
5 In January 2004, within a space of 19 days, the Respondent dis-
charged two prounion employees, including Zarco, and suspended a
third for a week. However, there were no exceptions to the judge’s
findings that the other termination (of Guadalupe Arteaga) was lawful.
I agree with the majority that the suspension and warning of Felipe
Serrano was not shown to be unlawful. The adverse actions against the
other two employees nevertheless constitute relevant circumstantial
evidence in determining whether the Respondent acted with unlawful
animus against Zarco, even if they were not proved to be independently
unlawful.
6 All of Zarco’s previous workcards did in fact specify Guatemala as
her country of origin. Under Federal law, certain individuals from
Guatemala were eligible for more favorable immigration treatment than
Mexican citizens.
7 Before 2002, the enforcement component of the Immigration and
Naturalization Service (INS) for the interior of the United States.
and obtain a written ICE confirmation that the error had
been corrected.
Zarco contacted her immigration attorney, Alberto
Salas, who wrote a letter to Elioff stating that Zarco had
obviously satisfied the INS’s requirements in order to
obtain her workcard but that the Respondent had the
right to verify the workcard’s validity if it wished to do
so. When Zarco delivered the letter to Elioff on January
19, Elioff again told her that she had to obtain a letter
from ICE confirming the required correction of her
workcard. With Zarco present, Elioff then called Salas
and told him what she had told Zarco. Salas pointed out
that Elioff could contact the INS if she doubted the ve-
racity of Zarco’s work authorization, and also suggested
that a letter from the Respondent to ICE would cover the
company’s legal obligations. However, Elioff told Salas
that Zarco would be fired for falsifying her documents
because the company “could get into trouble.” Elioff
called Zarco 3 days later and discharged her, telling her
that the “company attorneys” had decided she should be
fired. However, Zarco’s written termination notice, sent
to her the same day, specified that the reason for termina-
tion was “Voluntary Resignation.”
As the majority agrees, the judge should have analyzed
the discharge under Section 8(a)(3) as well as under Sec-
tion 8(a)(1) and (4), since that violation was also alleged
in the complaint. Unlike the majority, however, I would
find that the discharge violated Section 8(a)(3).8
The General Counsel clearly met his initial Wright
Line burden of showing that the Respondent acted with
antiunion animus.9 The Respondent not only has a his-
tory of committing unfair labor practices, see Interna-
tional Baking Co., supra,10 but committed the additional
violations found in this case just a few months before
Zarco’s discharge. Zarco was also closely associated
with the Bakery Workers, having served as an observer
for the Union in the 2002 election and as a witness for
the Union at the 2003 Board hearing. The majority as-
sumes arguendo that the General Counsel met his initial

8 I agree with the majority that the General Counsel did not establish
a violation of Sec. 8(a)(4), because the judge found no evidence that the
Respondent acted with animus against witnesses who had testified in
the August 2003 Board proceeding. I also agree that Zarco’s discharge
was not shown to be an independent violation of Sec. 8(a)(1) in connec-
tion with a conversation she had with a supervisor the day before her
suspension over whether she intended to write a letter in support of
Guadalupe Arteaga, a union supporter who was discharged on January
12, 2004. As the judge found, Elioff was not shown to have known
about that conversation before she fired Zarco.
9 251 NLRB 1083, 1089–1090 (1980), enfd. 662 F.2d 899 (1st Cir.
1981), cert. denied 455 U.S. 989 (1982).
10 In fact, the judge in International Baking Co. & Earthgrains, su-
pra, specifically found that Elioff acted with unlawful motive in select-
ing a union supporter for layoff in that case. 342 NLRB at 149.
INTERNATIONAL BAKING CO. & EARTHGRAINS 1141
Wright Line burden, but bases its conclusion that the dis-
charge was lawful solely on its finding that the Respon-
dent showed that it would have discharged Zarco even if
she had not engaged in protected activity. The majority,
like the judge, essentially accepts the Respondent’s con-
tention that Zarco was terminated for falsifying her im-
migration documentation.
Because the judge’s finding that Zarco admitted she
had misstated her country of origin on her workcard was
based on the crediting of Elioff’s testimony over Zarco’s,
I accept that finding as fact.11 Given the record as a
whole, however, I do not agree that the Respondent has
borne its burden of showing that Zarco would have been
discharged so quickly for this infraction if she had not
been a union activist. It is well established that undocu-
mented workers are employees protected by the Act,
even though they are not entitled to the remedy of back-
pay if they are discriminatorily fired.12 It is also well
settled that where the General Counsel has established
that the Respondent acted with unlawful animus, the Re-
spondent cannot simply cite a lawful rationale that might
have been available at the time but must show that it was
in fact motivated by that rationale.13 In this sense, com-
pliance with IRCA’s statutory requirements is no differ-
ent than any other lawful rationale for a discharge.14 The
Respondent was required to show that it would have
abruptly fired Zarco based on her perceived non-
compliance with IRCA even in the absence of her union
activity. This it has failed to do.
First, the Respondent’s written mischaracterization of
Zarco as having voluntarily “resigned” when it is clear
that she was fired undermines its contention that it acted
out of fear of exposure to legal sanctions if Zarco were
not discharged quickly. There was no reason for the Re-
spondent to conceal either the nature of Zarco’s separa-

11 I note in passing, however, that the judge apparently did not dis-
credit Zarco because of her demeanor but because of perceived oral and
written “inconsistencies” in Zarco’s testimony and her prehearing de-
scription of her first conversation with Elioff. These inconsistencies
may not have justified the weight the judge chose to give them.
Zarco’s testimony that she did not understand what “error” on her
workcard Elioff was referring to, even though Elioff pointed to the
word “Guatemala,” would have been plausible if Zarco was in fact
from Guatemala and if Elioff (as Zarco testified) did not refer to Mex-
ico in that conversation. And with respect to Zarco’s failure to refer to
certain statements by Elioff in the letter she wrote shortly afterward on
behalf of Arteaga, the judge appears to have discredited Zarco because
she did not write with the precision of an attorney.
12 Hoffman Plastic Compounds, Inc. v. NLRB, 535 U.S. 137, 150 fn.
4 (2002); Concrete Form Walls, 346 NLRB No. 80, slip op. at 3–4
(2006).
13 E.g., Allen v. NLRB, 561 F.2d 976, 982 (D.C. Cir. 1977); Stemilt
Growers, 336 NLRB 987, 990 (2001); Wright Line, 251 NLRB at 1089.
14 Concrete Form Walls, supra, 346 NLRB No. 80, slip op. at 3–6,
citing Sure-Tan v. NLRB, 467 NLRB 883, 896 fn. 6 (1984).
tion or the true reason for it if it was in fact motivated by
that fear.15 Where a stated reason for an action is found
to be pretextual, an inference is justified that the real
motive was unlawful.16
Second, while infractions of IRCA cannot be con-
doned, it is implausible that in normal circumstances the
Respondent would have discharged a 10-year employee
with a good record as quickly as Zarco was terminated
after the discovery of the violation. Elioff suspended
Zarco without pay immediately upon confronting her
with the purported discrepancy on her workcard, and in
doing so clearly placed the Respondent in sufficient
compliance with IRCA to avoid liability. Elioff could
therefore have given Zarco more than a week either to
obtain corrective documentation from ICE or to take
other corrective steps before finally discharging her.17
Instead Elioff informed Zarco’s attorney only 5 days
after her suspension that Zarco would be discharged,
ignoring his suggestion that the Respondent satisfy its
legal obligations by merely reporting the situation to ICE
and thereby documenting its intention to comply with
IRCA. Elioff apparently did not even discuss that sug-
gestion with the Respondent’s own attorneys. Accord-
ingly, although the Respondent was concededly required
to take some action upon discovering that Zarco was not
authorized to work, it had no IRCA obligation to dis-
charge her so quickly.18
Third, the Respondent has conspicuously failed to
show how it would deal with, or had dealt with, similar

15 In the majority’s view, “it is not unusual” for employers to record
a discharge as a “resignation.” To the extent this is accurate, it suggests
that the Board should not give much weight to an employer’s contem-
poraneous statement of the reason for a termination.
16 E.g., Shattuck Denn Mining Corp. v. NLRB, 362 F.2d 466 (9th Cir.
1966); Smucker Co., 341 NLRB 35, 40 (2004), enfd. 130 Fed.Appx.
596 (3d Cir. 2005); Loudon Steel, 340 NLRB 307, 312 (2003).
17 One need not be an expert in Federal bureaucracy to question the
assumption that Zarco could have obtained a notice of “correction” or
any other written communication from the ICE within the space of a
week. For example, employers and immigration attorneys alike have
opposed a recent proposal by the Department of Homeland Security to
require employers who receive “no-match” letters from the Social
Security Administration (indicating a discrepancy between an em-
ployee’s stated name and social security number) to get the discrepancy
resolved within 60 days, on the partial ground that much more time
would be needed. “Business, Unions Agree: DHS Should Abandon
proposed Rule on SSA No-Match Letters,” Daily Labor Report (Aug.
22, 2006). To recognize this reality is not to “substitute” any “business
judgment” for the Respondent’s or to dictate what the Respondent was
“required to do.” This reality is material in determining what actions
the Respondent would have taken regarding an immigration discrep-
ancy in the absence of Zarco’s protected activity.
18 This directly undercuts the Respondent’s asserted motive for act-
ing against Zarco with such haste. And as the majority agrees, the
“issue” here is the Respondent’s real motive—i.e., whether Zarco
would have been treated in the same manner even if she had not been a
union activist.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1142
cases in the past.19 Again, while IRCA required the Re-
spondent to take corrective action, IRCA did not dictate
that Zarco be discharged only a few days after she was
placed on unpaid suspension. The Respondent confirms
in its brief that it employed a “significant number” of
foreign nationals, and its management was therefore fa-
miliar with ICE’s enforcement procedures. There is no
dispute that, as the majority emphasizes, the Respondent
had a practice of reviewing work permits that were due
to expire. But the Respondent has not even contended
that Zarco’s treatment after Elioff reviewed her permit
conformed to a preexisting policy or practice, let alone
presented evidence of what that practice was.
The majority is correct that the mere possibility that
Zarco’s discharge was not “compelled” by IRCA “does
not convert the discharge here to a violation of the Act.”
By the same token, however, neither does the mere pos-
sibility that a discharge might eventually be necessary
under IRCA if Zarco took no corrective action to convert
the precipitous discharge to a lawful action if it was mo-
tivated by antiunion animus. The fact that the Board
must, like any other Federal agency, respect IRCA’s re-
quirements does not authorize an employer to use com-
pliance with IRCA as a pretext for discrimination against
employees who engage in Section 7 activity.20 Because
the Respondent failed to show that Zarco would have
been treated in the same manner if she had not been a
union supporter, her discharge violated Section 8(a)(3).
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we vio-
lated Federal labor law and has ordered us to post and obey
this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on
your behalf
Act together with other employees for your bene-
fit and protection

19 Only after a respondent employer shows that it was enforcing a fa-
cially valid personnel procedure already in place, or at least was acting
consistently with past practice, is the General Counsel required to show
disparate enforcement. See, e.g., Golub Corp., 338 NLRB 515, 516
(2002); Baptist Medical Center, 338 NLRB 346, 376 (2002).
20 See Concrete Form Walls, supra, slip op. at 5 fn. 19 (even where
employer reasonably believed discriminatees were unauthorized aliens,
employer could not use their undocumented status as a pretext for dis-
charge for their union activity).
Choose not to engage in any of these protected
activities.
WE WILL NOT interrogate employees about their or
other employees’ union and other protected concerted
activities.
WE WILL NOT create the impression of surveillance of
employees’ union activities.
WE WILL NOT impliedly threaten employees with repri-
sals if they continue to engage in union or other protected
activities.
WE WILL NOT attribute the possible outsourcing of
work to employees’ union or other protected concerted
activities.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
SARA LEE D/B/A INTERNATIONAL BAKING
COMPANY AND EARTHGRAINS
Jean Libby and Irma Hernandez, Esqs., for the General Coun-
sel.
Timothy A. Davis and Kimberley F. Seten, Esqs. (Constangy,
Brooks & Smith, LLC), of Kansas City, Missouri, for the
Respondent.
Amanda Lively (Wohlner, Kaplon, Phillips, Young & Cutler),
of Sherman Oaks, California, for the Charging Party, Team-
sters Local 63.
Guadalupe Palma, Esq. (Weinberg, Roger & Rosenfeld), of
Alameda, California, for the Charging Party, Bakery Union
Local 37.
Ruben Luna, Organizer, of Covina, California, for the Charging
Party, Teamsters Local 63.
DECISION
I. STATEMENT OF THE CASE
LANA H. PARKE, Administrative Law Judge. This matter was
tried in Los Angeles, California, on April 4 through 7, and May
23, 2005,1 upon second order consolidating cases, amended
consolidated complaint, and amended notice of hearing (the
complaint) issued December 15, 2004, by the Acting Regional
Director of Region 21 of the National Labor Relations Board
(the Board) based on charges filed by Wholesale and Retail
Food Distribution, Teamsters Local 63 (Teamsters Local 63),2
on a charge filed by Bakery, Confectionery and Tobacco
Workers and Grain Millers International Union, Bakery Union
Local 37, AFL–CIO, CLC (Bakery Union Local 37 ), and on a
charge filed by Martin Sanchez (Sanchez), an individual. The
complaint, as amended, alleges Sara Lee Bakery Group d/b/a
International Baking Company and Earthgrains (Respondent)
violated Section 8(a)(1), (3), and (4) of the National Labor

1 All dates herein are 2004, unless otherwise specified. The hearing
was continued from April 7 to May 23, 2005, to permit counsel for the
General Counsel to procure the testimony of Alberto Salas.
2 The full name of Teamsters Local 63 is set forth in the case cap-
tion.
INTERNATIONAL BAKING CO. & EARTHGRAINS 1143
Relations Act (the Act).3 Respondent essentially denied all
allegations of unlawful conduct.
II. ISSUES
1. Did Respondent engage in the following independent vio-
lations of Section 8(a)(1) of the Act: threaten employees with
termination if they selected Teamsters Local 63 as their collec-
tive-bargaining representative; threaten employees with job loss
if they voted for Teamsters Local 63 and in the event of a
strike; threaten employees with unspecified reprisals if they
engaged in protected activities; threaten to report employees to
the Bureau of Citizenship and Immigration Service (formerly
known as Immigration and Naturalization Service) in retaliation
for engaging in protected activity; interrogate employees about
their union activities; create the impression of surveillance of
employees’ union activities; threaten an employee with un-
specified reprisals for having testified in support of another
employee’s unemployment insurance claim; and threaten to
terminate an employee if he contacted a union representative?
2. Did Respondent violate Section 8(a)(3) and (1) of the Act
by suspending and terminating Jose Guadalupe Arteaga on
January 12?
3. Did Respondent violate Section 8(a)(1), (3), and (4) of the
Act by suspending and terminating Maria Zarco on January 13
and 22, respectively?
4. Did Respondent violate Section 8(a)(3) and (1) of the Act
by suspending and issuing a written warning to Felipe Serrano
on January 29?
III. JURISDICTION
Respondent, a Delaware corporation, with a facility located
in Vernon, California (the Vernon facility) has at all relevant
times been engaged in the manufacture, sale, and distribution of
bakery products to commercial customers. During the 12-
month period ending September 22, 2003, a representative
period, Respondent annually sold and shipped goods valued in
excess of $50,000 directly from its Vernon facility to customers
located outside the State of California. Respondent admits, and
I find, it has at all relevant times been an employer engaged in
commerce within the meaning of Section 2(2), (6), and (7) of
the Act and Teamsters Local 63 and Bakery Union Local 37
have been a labor organizations within the meaning of Section
2(5) of the Act.4
IV. FINDINGS OF FACT
A. Alleged Independent Violations of Section 8(a)(1) of the Act
Respondent manufactures bakery products at its Vernon fa-
cility, where at all times relevant hereto, it employed 18–20
shipping and receiving employees and 11 delivery drivers. In
2002, Bakery Local 37 conducted a representation campaign
among Respondent’s shipping and receiving employees, culmi-
nating in a Board-conducted representation election, which

3 At the hearing, counsel for the General Counsel amended the com-
plaint to include the January 29, 2004 suspension of Felipe Serrano as a
violation of Sec. 8(a)(3) and (1) of the Act. Respondent denied the
amended allegation.
4 Unless otherwise explained, findings of fact are based on party
admissions, stipulations, and uncontroverted testimony.
Bakery Union Local 37 lost.5 In the spring of 2003, Teamsters
Local 63 commenced an organizational campaign among Re-
spondent’s drivers at the Vernon facility. Region 21 conducted
a representation election among Respondent’s drivers on Octo-
ber 16, 2003, which Teamsters Local 63 won by a vote of 7 to
7. Jose Guadalupe Arteaga (Guadalupe Arteaga or Guadalupe)
and Felipe Serrano (Serrano) actively supported Teamsters
Local 63 from nearly the inception of its campaign.
During the course of the campaign, the following exchanges
occurred between supervisors and employees of Respondent:
1. Rigoberto Arteaga (aka Arturo Arteaga and herein Arturo
Arteaga or Arturo), shipping and receiving supervisor
According to Guadalupe Arteaga,6 in September 2003,
Arturo Arteaga asked Guadalupe if he was aware someone
wanted to bring in a union and asked if Guadalupe had signed a
union card because he knew seven drivers had. When Guada-
lupe denied signing, Arturo said he had been told one of the
cards bore the last name of “Arteaga.” Guadalupe said perhaps
a temporary driver had used his name.
Two to 3 days later, Arturo told Guadalupe to tell him if he
knew something about the Union. Guadalupe denied any
knowledge. Arturo said that maybe Guadalupe was even the
president. Guadalupe answered that if Arturo continued to say
that he would talk to his supervisors upstairs. Arturo laughed.
Thereafter, Arturo often referred to Guadalupe in front of other
employees as “the president of the union.”
On other occasions, Arturo instructed Guadalupe to tell him
which employees had “voted” for the Union, saying that even if
employees had not signed, employees would have to leave.
Arturo Arteaga denied the above accusations. I credit Gua-
dalupe Arteaga’s account. His testimony was clear, consistent,
and forthright.7
Sanchez testified that on several occasions prior to the elec-
tion, Arturo Arteaga asked whom he was going to vote for and
told him to be careful about his choice. On the day before the
election, Arturo told Sanchez he knew whom he was going to
vote for. On the day of the election, Arturo told Sanchez not to
forget whom he was voting for. Arturo denied having such
conversations with Sanchez. Sanchez’ precomplaint affidavit
to the Board does not mention any interrogation but states only
that Arturo Arteaga told him to “be careful who you vote for.”
Respondent terminated Sanchez in November 2003. Subse-
quently, Sanchez filed an unfair labor practice charge with the
Board, which was thereafter dismissed. The potential bias cre-
ated by this history, coupled with the discrepancies between
Sanchez’ affidavit and his assertions at the hearing, prevent me

5 The Board dismissed in part and sustained in part objections to that
election. International Baking Co. & Earthgrains, 342 NLRB 136
(2004).
6 Arturo Arteaga is not related to Guadalupe Arteaga.
7 I consider few witnesses in this matter to have been fully candid or
consistently reliable in all testimony. However, I need not refuse to
accept everything a witness says because I do not believe all of it;
“nothing is more common in all kinds of judicial decisions than to
believe some and not all [that a witness says].” NLRB v. Universal
Camera Corp., 179 F.2d 749, 754 (2d Cir. 1950), revd. on other
grounds 340 U.S. 474 (1951), cited with approval in Daikichi Sushi,
335 NLRB 622 (2001).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1144
from crediting his testimony.
2. Sara Dominguez (Dominguez), Respondent’s human
resources supervisor
According to Guadalupe Arteaga, after Arturo Arteaga first
spoke to him, Dominguez called him to her office and asked if
he knew something about the union. When Guadalupe Arteaga
denied knowledge, Dominguez told him he was one of the most
senior drivers and made decent money, that the Union would
harm him, and that it would be better for him not to sign a un-
ion card. When Guadalupe Arteaga again denied knowledge,
Dominguez told him to think about it. Dominguez denied any
such conversation but testified, somewhat equivocally, “No, I
didn’t ask because I already knew. They just—you couldn’t
talk to them. There was no change in their minds. I mean there
was no reason to talk to them.” I find Guadalupe Arteaga’s
testimony in this regard persuasive, and I credit his account.
3. Manuel Arteaga, shipping and receiving supervisor
and brother of Arturo Arteaga
According to Guadalupe Arteaga, sometime before the elec-
tion, Manuel Arteaga asked Guadalupe and Sanchez if they
knew which employees had signed union cards. They denied
knowledge. Manuel Arteaga said that even if the Union won an
election, the drivers would leave, as he would hire the Schnei-
der company to do their work.8
Two to 3 days later, Manuel Arteaga told Guadalupe that he
knew who the leader of the Union was. Guadalupe said that if
they knew, they should stop calling him the president. Manuel
Arteaga said he also knew who had signed cards.
At about the same time, Manual Arteaga, referring to the up-
coming election, told Sanchez, “Don’t do wrong by us.”
Following the election, according to Guadalupe Arteaga,
Manuel Arteaga told him he was certain he had voted for the
Union. Guadalupe admitted doing so.
Manuel Arteaga denied talking to any employee about the
union at any time. I did not find his denials convincing, and I
do not credit them.
4. Jesse Medina (Medina), logistics manager
As Respondent correctly points out, there is no complaint al-
legation that Jesse Medina’s conduct violated the Act. Not-
withstanding the General Counsel’s presumably inadvertent
omission, counsel for the General Counsel presented detailed
evidence of Medina’s allegedly unlawful statements, and Re-
spondent called Medina to rebut the testimony. Therefore, I
find the parties fully litigated this issue. “It is well settled that
the Board may find and remedy a violation even in the ab-
sence of a specified allegation in the complaint if the issue
is closely connected to the subject matter of the complaint
and has been fully litigated [citations omitted].” Atlantic
Veal & Lamb, Inc., 342 NLRB 418 fn. 5 (2004). The issues
regarding Medina’s statements are inextricably connected to
the timely alleged allegations of the complaint, involve the
identical underlying legal theory and factual situation, and are

8 Respondent did, in fact, subcontract its product delivery work
sometime after the election. The General Counsel does not allege that
the subcontracting violated the Act.
subject to the same employer-raised defenses. Redd-I, Inc., 290
NLRB 1115, 1118 (1988); Precision Concrete, 337 NLRB 211
(2001). Accordingly, I have considered whether Medina’s
statements violated Section 8(a)(1) of the Act.
According to Guadalupe Arteaga, Medina asked him if he
knew anything about the Union because he had a letter saying
drivers had signed cards authorizing the Union to represent
them. Guadalupe denied knowledge. Medina said the Union
was not a good thing, and Guadalupe should tell the honest
truth if he was involved. Guadalupe again denied involvement.
Medina told Guadalupe that he knew he was comfortable in his
job and that he should think about the Union, as it was not a
good thing.
Guadalupe Arteaga also testified that on another occasion as
they rode together in a delivery truck, Medina asked him to
report what he knew about the Union and whether he was com-
fortable with his job. Guadalupe complained that Arturo
Arteaga pressured him, yelled at him, gave him the worst jobs,
called him names (i.e. “La Gorda,” meaning the fat lady), and
grabbed his private parts. Medina laughed. Guadalupe said it
was not funny and reminded Medina that he had promised to
fix those problems when Guadalupe had formerly complained
of them. Medina said he would try to give Guadalupe a raise.
Driver Felipe Serrano (Serrano) testified that in early Sep-
tember, Medina asked him if he knew who organized the driv-
ers. Serrano denied knowledge, but thereafter Medina contin-
ued to inquire and asked Serrano to find out who wanted the
Union and who had signed authorization cards, saying he
would keep the information confidential.
Although Medina, who no longer worked for Respondent at
the time of the hearing, admitted that the topic of the Union
came up in conversations with employees, he denied telling any
employee that he knew who had signed authorization cards. I
find Guadalupe Arteaga’s and Serrano’s testimony in this re-
gard persuasive, and I credit their accounts.
In September 2003, Serrano invited two drivers, Alfredo
Garcia and Arturo Maravilla (Maravilla), to attend a union
meeting. When the two declined, Serrano told them it was
unfair for them to let union supporters do the work to obtain
benefits they would later profit from. According to Serrano,
both he and Maravilla used strong language but parted without
further incident. A few days later, Medina told Serrano never
to invite Garcia and Maravilla to a union meeting, as he could
get into trouble if he did.
5. Rick Medina, safety director9
In August 2004, Respondent received a customer complaint
that one of Respondent’s delivery drivers had knocked down a
shed at the customer’s facility. Upon reviewing the delivery
schedule, Medina and Rick Medina identified the driver as
Serrano. In the course of Respondent’s investigation, while
enroute to view the subject trailer, Serrano told Rick Medina he
wanted to call his union representative to protest the Com-
pany’s reaching a conclusion without investigation. Serrano
testified that Rick Medina told him if he called the Union, it
could be grounds for termination. Fortuitously, Luna called

9 Rick Medina is not related to Medina.
INTERNATIONAL BAKING CO. & EARTHGRAINS 1145
Serrano on his cellular telephone at that moment. Serrano told
Luna about the situation and asked if he wanted to speak to
Rick Medina. After Rick Medina accepted the telephone,
Serrano heard him say it was a bad connection and recite his
office number. Serrano and Rick Medina went to the latter’s
office where Rick Medina accepted a phone call from Luna. I
do not credit Serrano’s testimony that Rick Medina told him
calling the Union could be grounds for termination. It is im-
probable that after having made such a statement, Rick Medina
would immediately engage in an apparently amicable conversa-
tion with Serrano’s union representative. Moreover, there is no
evidence Serrano told Luna of the threat, which one would
expect had such a threat occurred. Following further investiga-
tion of the incident, Respondent issued Serrano a final warning,
which the General Counsel did not allege violated the Act.
6. Irma Elioff
Following his discharge, Guadalupe Arteaga filed for unem-
ployment benefits with the State of California, Employment
Development Department (EDD), which resulted in a hearing
on April 5, before Administrative Law Judge Georgina Torres
Rizk of the California Unemployment Insurance Appeals Board
(the unemployment hearing). Serrano, inter alia, testified at the
unemployment hearing on behalf of Guadalupe. In the course
of cross-examination, Irma Elioff (Elioff), Respondent’s human
resources director, asked Serrano if he was, at the time of his
testimony, in “final warning” status. According to Elioff, she
asked the question essentially to show potential bias on
Serrano’s part.
7. Respondent’s preelection meetings with drivers
Prior to the October election, Respondent held three meet-
ings with its drivers regarding the upcoming union vote. Elioff
spoke at the meetings. Also present for Respondent were
Arturo Arteaga, Dominguez, and Medina.
According to employee witnesses, at the first meeting, Elioff
told employees there was nothing good about the Union, that it
was losing membership and was always on strike, and that em-
ployees would lose if they voted for it, that unions go on strike,
and if other companies went on strike, Respondent’s drivers
would have to join them and could be more easily fired. She
told employees that Respondent could make its rules stricter,
that if employees were 5 minutes late they could receive a
warning, and on the third tardy it would be “goodbye.” (In this
regard, Guadalupe Arteaga understood Elioff to be speaking of
what would occur if employees were in the Union.) Elioff said
medical coverage under a union was no good; a union charged
dues and could raise them when employees least expected it.
She told employees it was better they not vote, as they would
lose seniority and start from zero in bargaining. She said if
employees went on strike the Company could subcontract the
delivery work, naming the Schneider company as a likely pros-
pect.
Employee witnesses recalled that at the second meeting,
Elioff repeated much of the same information given in the first
meeting. She also told employees Respondent was legally
obligated only to pay them minimum wage and could subcon-
tract the delivery work to Schneider. Elioff read aloud from
news clippings of strikes in Tennessee where the companies
replaced strikers, and workers got fired. Dominguez described
her family’s privations and loss of income when her husband’s
union had gone on strike. Elioff said that the Union would
charge employees $500 a year, which could otherwise be used
to buy food for the family. Respondent showed a video in
which a driver told of his father’s experiences with a union and
advised employees to vote no.
At the third meeting, employee witnesses said, Respondent
showed a video and representatives asked employees not to
vote for the Union. Elioff said striking employees would not
receive unemployment and could be replaced. All employee
witnesses denied that Elioff had read from anything other than
news clippings at the meetings, but I cannot accept their testi-
mony in that regard. In her posthearing brief, counsel for the
General Counsel concedes that Elioff “read from prepared
scripts.” I note that in meetings Respondent conducted with
employees during the 2002 union election campaign Elioff also
read, although not verbatim, from scripts. International Baking
Co. & Earthgrains, supra. The inability of employees who
testified about the meetings to recall that Elioff read from
scripts impacts negatively on their reliability as witnesses.
Respondent introduced three scripts into evidence. Elioff,
Medina, and Dominguez denied that in responses to questions
that Elioff said drivers could lose their jobs or be fired.
Dominguez testified that Elioff answered a question about driv-
ers’ wages up north by saying there were no guarantees, since,
with a union, wages and benefits could go up or down, and that
during a strike employees could lose benefits because they were
not working. After taking into consideration the sketchiness
of the various employee accounts and after assessing all
testimony for reliability and consistency, I find that Respon-
dent’s witnesses, in this regard, testified clearly, unequivocally,
and sincerely. I find that Elioff, for the most part, read to em-
ployees from printed scripts, and I credit Respondent witnesses’
testimonies of her nonscripted statements. In pertinent part,
Elioff’s scripted remarks read as follows:
The Teamsters have more strikes each year than any
other union in the country. I repeat, the Teamsters have
more strikes than any other union in the country. Strikes
with the Teamsters can happen two ways. If we don’t
agree with the Teamsters during negotiations of wages or
other things, they can take you all out on strike. This is
called a primary strike. Again, given our current financial
situation, if the Teamsters win this election, you could find
yourself in a position where if we refuse the Teamsters re-
quests during bargaining they could call you out on strike.
. . . .
Always remember, economic strikers don’t get paid,
don’t get benefits, don’t get unemployment and can be
permanently replaced by other employees or contract driv-
ers.
. . . .
If the costs of delivering the products are more than
the cost of using an outside transportation company,
measures like they took in London [Kentucky] have to be
considered. I am not saying that we have a plan in place
in our bakery to outsource the driver jobs or that we would
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1146
outsource the jobs if the Teamsters win the election. I re-
peat, I am not saying that we have a plan in place in our
bakery to outsource the driver jobs or that we would out-
source the jobs if the Teamsters win the election. All I am
saying is that if production or delivery costs are not in line
with earnings all options have to be considered.
In her posthearing brief, counsel for the General Counsel as-
serts that Elioff “admitted to telling [employees at the meet-
ings] that under a union contract, there would be no flexibility
in administering a disciplinary procedure because Respondent
would end up with grievances.” Presumably, counsel referred
to the following testimony:
Q. In [any of these three meetings] did you ever tell
employees . . . that it would be easier to fire them if they
voted in a union?
A. No.
Q. Did you talk about what would happen to them if
they might be five minutes late getting to work?
A. Yes . . . What I explained to them was unfortu-
nately under a union contract if there is a disciplinary pro-
cedure in that union contract we would not have the luxury
of deviating from it because we might end up with union
grievances as a result of it.
B. Suspension and Termination of Guadalupe Arteaga
By Guadalupe Arteaga’s account, in the 2 years before the
union organizational campaign began, Arturo Arteaga, whom
he had known for 30 years and whom he considered a friend,
engaged in “horseplay” at work by grabbing his buttocks.
Guadalupe admitted that although he did not like the horseplay
and did not think his supervisor should behave that way, he
sometimes jokingly “returned” the conduct after Arturo insti-
gated it or mimicked the conduct because he was angry about
it. Guadalupe said he complained about it to Elioff, who said
she would take care of it but did not.
One or 2 days after Respondent held its second union cam-
paign meeting, Guadalupe Arteaga spoke with Oscar Lopez
(Lopez) in Medina’s office. Lopez, who said he was there from
New Mexico to represent the company, told Guadalupe he was
not telling employees to vote yes or no, but he reminded Gua-
dalupe of what he had said at the meeting. Guadalupe told
Lopez how Arturo Arteaga treated him: pressuring him, yelling
at him, grabbing his private parts in front of others, assigning
him the worst jobs, calling him the fat lady, stealing pallets
from the company, and selling bread to the lunch truck proprie-
tors. Lopez said he would report Guadalupe’s complaints to
management.
On January 12, Guadalupe Arteaga unloaded a trailer with
Gemaro Bugarin (Bugarin), Arturo Arteaga’s uncle. When the
two finished the unloading, Guadalupe asked Bugarin to move
the trailer, as was customary. Arturo intervened and told Gua-
dalupe, “No, you’re going to move it.” Guadalupe asked why
Arturo’s “f— cousin” did not move it, as he always did. Arturo
repeated his order, and Guadalupe agreed, saying he would first
visit the restroom. Up to this point, the story is essentially un-
disputed. Witnesses disagree, however, as to what transpired
after Guadalupe returned from the restroom.
According to Guadalupe Arteaga, on his return to the loading
area from the restroom, as he passed Arturo Arteaga, Arturo
grabbed his testicles very hard from the front, “squeezing like
never before.” In considerable pain, Guadalupe wordlessly
shoved Arturo away from him into some bread trays, ripping
his jacket. Guadalupe’s testimony at his April 5 unemployment
hearing differs somewhat from his hearing testimony. Guada-
lupe testified in the unemployment forum that on April 5 when
he was going toward the office to obtain his paperwork, Arturo
Arteaga grabbed him, whereupon Guadalupe “turned around
desperately” and in doing so, tore Arturo’s jacket. Guadalupe’s
report to Zarco of what occurred also differs from his testi-
mony. According to Zarco, Guadalupe telephoned her at home
to ask her to write a letter describing the times she had seen him
and Arturo playing around at work. Guadalupe told Zarco he
needed the letter because of something that happened while he
and Arturo were playing around. Guadalupe said he had
grabbed Arturo from behind, and when Arturo in return had
grabbed his genitals, Guadalupe had pushed him into a stack of
trays.
Testifying for the General Counsel, Serrano said that he ob-
served the confrontation as he was walking toward the exit
door; he saw Arturo Arteaga grab Guadalupe Arteaga by the
“balls,” and Guadalupe shove him away by pushing his shoul-
der, after which Serrano turned away and left. In testimony
given at Guadalupe’s April 5 unemployment hearing, Serrano
said that Arturo and Guadalupe “basically [stood] facing each
other” when Arturo grabbed Guadalupe’s “private parts.”
Serrano said he had never before seen Arturo touch any em-
ployee, including Guadalupe other than by slapping them on
their shoulders or backs. Serrano’s latter testimony is inconsis-
tent with his January 12 written description of the event, which
states, in pertinent part:
I . . . have been witness and saw Arturo Arteaga . . . grab and
push Jose Guadalupe Arteaga . . . grabbed him on the bud
[sic].10 It is not the first time that I have seen this before. Last
time I seen this was on 1-11-2004.
According to Arturo Arteaga, after Guadalupe Arteaga an-
grily inquired why Arturo Arteaga’s “f— relative” would not
move the trailer, he ran toward Arturo, grabbed him by his
neck, ripping his jacket, pushed him against the bread racks,
and made a motion as if he would hit him.11 Arturo asked what
was going on, whether Guadalupe was crazy, and why he had
done that to him. Arturo denied grabbing Guadalupe’s private
parts or fighting him in any way.
Respondent called two witnesses, who described what they
had seen of the confrontation. William Quevado, shipping and
receiving employee, heard Arturo Arteaga tell Guadalupe
Arteaga to move a trailer as the two walked in front of him, but
he did not hear Guadalupe’s response, and he saw no physical
contact, being turned away from the two. He did not pay
enough attention to notice whether their voices were angry, but
he heard cloth rip. Bugarin testified he went to the restroom

10 I take “bud” to be a misspelling of “butt.”
11 By gesture during his testimony, Arturo Arteaga demonstrated
Guadalupe Arteaga’s grabbing his jacket by its front-neck area.
INTERNATIONAL BAKING CO. & EARTHGRAINS 1147
immediately after Arturo Arteaga directed Guadalupe Arteaga
to move the trailer and neither saw nor heard any further inter-
action between the two.
After their confrontation, Arturo Arteaga left the loading
area and immediately telephoned his supervisor, Medina. He
told Medina that Guadalupe had lunged at him, grabbed him by
the throat, and pushed him against a rack of bread. He said his
neck hurt, and Medina told him to go to the health clinic and to
tell Manuel to tell Guadalupe he was suspended. Arturo then
telephoned Elioff. While this was going on, Guadalupe moved
the trailer, reported to the office and obtained his delivery pa-
pers from Arturo, who was talking on the telephone, and made
his delivery. When Guadalupe Arteaga returned to the Vernon
facility, Luis Magana and Manuel Arteaga told him he had to
go home and return the next day to talk to Elioff. According to
Guadalupe, he asked for permission to finish his 8 hours, to
which Manuel Arteaga initially agreed but later refused, saying
Respondent would say he was not doing his job properly. Gua-
dalupe said that maybe he was already not doing his job prop-
erly because a driver named Bajaro had punched in and then
gone to work another job. According to Guadalupe, Manual
Arteaga said that Bajaro was not in the Union.
At some point following the Arturo/Guadalupe incident,
Arturo Arteaga met with Elioff in her office. He told her that
William Fierro Quevado, Nicolas Macias, and Bugarin had
been working in the area at the time of the confrontation. He
also told Elioff that although he had telephoned the police, he
did not file a report because the police cautioned him that Gua-
dalupe Arteaga could echo his accusation of assault, and the
police would have to arrest him as well.
Elioff spoke to Nicolas Macias, who said that he was stand-
ing by the bread trays, that he heard something and noticed the
trays move. Then he saw Arturo Arteaga, who showed him his
torn jacket. Elioff also spoke to William Quevado, who said he
was counting bread when he heard angry voices and ripping
cloth. When he turned toward the sounds, he saw Guadalupe
and Arturo Arteaga standing together before walking away in
separate directions.12
At 11:09 a.m. that same day, Elioff informed Respondent’s
head office by e-mail that Guadalupe had “physically as-
saulted” Arturo, stating inter alia:
My recommendation is immediate discharge. We have
a custom and practice as well as a policy that an employee
is discharged for [cause] whenever this has happened. We
do not have a single employee who has ever gotten into a
fight and has been given a warning or suspension. They
have always consistently been discharged immediately af-
ter an investigation confirms this.
In addition, I would like to point out the written docu-
mentation we have given several of these Class A Drivers
due to their behavior as a result of them having voted in
the union. They have been insubordinate, but we have

12 In a file memo regarding the incident dated January 12, Elioff
stated that she interviewed Leopoldo Meza as a witness. At the hear-
ing, Elioff testified that she had inadvertently substituted Leopoldo
Meza’s name for that of Nicolas Macias. Elioff did not interview Bug-
arin until June.
treaded lightly towards them and merely given them some-
thing in writing. In my opinion we cannot afford to devi-
ate from our custom and practice as well as policy of zero
tolerance towards violence in the workplace.
When Guadalupe Arteaga went home, he telephoned Union
Representative Ruben Luna (Luna). The following day, the
two returned to Respondent’s facility at 11 a.m. Declining to
permit Luna to participate, Elioff met with Guadalupe in her
office and asked what had happened the day before. According
to Guadalupe, he told her that Arturo Arteaga had grabbed his
private parts and he had torn his jacket. Elioff accused Guada-
lupe of trying to hit Arturo, saying she had two witnesses but
refusing either to name them or let Guadalupe see them. Gua-
dalupe said he had witnesses too, and asked her to let him con-
front Arturo, which she refused. Guadalupe told Elioff that he
and Arturo were just playing with each other and that Arturo
was in the habit of playing with the employees. According to
Elioff, Guadalupe told her that he and Arturo had been horsing
around as usual, but this time Guadalupe had ripped Arturo’s
jacket accidentally. Elioff denied that Guadalupe had said any-
thing about Arturo grabbing him, which is inconsistent with her
testimony at the April 5 unemployment hearing, where she
admitted that Guadalupe Arteaga had told her on January 21
that Arturo Arteaga had grabbed his private parts.
Elioff sent Guadalupe Arteaga home, saying she would call
him later. A few hours later, Elioff called Guadalupe and told
him he was fired.
With the purpose of proving that Arturo Arteaga had a pro-
pensity for physical sexual contact with employees, counsel for
the General Counsel presented witnesses to testify about
Arturo’s inappropriate behavior at work. Corroborated by
Maria Zarco (Zarco), shipping and receiving employee, Guada-
lupe Arteaga testified that he saw Arturo show obscene photo-
graphs including two of Arturo in compromising positions with
a scantily clad woman to Zarco and ask her if she would like to
be the woman in the photographs.13 Guadalupe also testified
that Arturo sometimes grabbed his buttocks while telling Zarco
to watch. Zarco testified that Arturo and Guadalupe played
around a lot, grabbing each other’s buttocks and genitals and
pushing each other.14 Daily, she saw Arturo touch other driv-
ers’ buttocks and genitals. On one occasion, Arturo told her to
look inside a trailer where employee, Gustavo Diaz, sporting a
bra and thong underwear, submitted to other drivers grabbing
his privates.15 According to Zarco, beginning in October 2003,
Arturo embraced her from behind on two occasions and asked
her out, all of which Arturo denied. Zarco said she complained

13 Copies of the photographs were put into evidence. Admittedly,
the photographs were taken at a party attended by both Guadalupe and
Arturo Arteaga. I find it unnecessary to resolve who took the pictures,
who kept them, or how they were obtained for submission into evi-
dence.
14 According to Zarco’s January 14 written description of this physi-
cal interaction, “other people that were not drivers would get in the
game . . . [and] none of them would hide when they grabbed each oth-
ers buttocks and their front part.”
15 Gustavo Diaz denied that he had ever, willingly or under coercion,
worn the described garments at work. He did not seem a likely candi-
date for vulgar inanity, and I credit his testimony.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1148
to Dominguez that Arturo was bothering her. Dominguez told
Zarco that if it happened again, she was to tell her. About 2
weeks later, Zarco also reported Arturo’s behavior to Elioff.
Elioff said she would take care of it. Both Dominguez and
Elioff denied receiving any such complaints.
Along these same lines, driver Alex Padilla, testified that he
had twice seen Arturo Arteaga touch Guadalupe Arteaga’s
buttocks both before and after the union election.16 He also
testified that in about June 2003, he had seen Arturo grab a
female lunch truck proprietor from behind and simulate having
sex. Driver Adalid Osorto recalled seeing Arturo Arteaga grab
the proprietor’s breasts from behind.17 He also testified that he
saw Arturo touch Guadalupe Arteaga’s private parts, as well as
Sanchez’, and grab Guadalupe from behind, simulating a sex
act.18 Sanchez testified he saw Arturo inappropriately touch
drivers who worked with him, particularly targeting Guadalupe
by grabbing his buttocks or touching his anus. Sanchez agreed
that Guadalupe also grabbed Arturo, saying the two “played
with each other and also testified that he and other employees
played around in the same way. Arturo Arteaga also called
Guadalupe Arteaga “La Gorda” (the fat lady). The evidence
shows that most employees had used the term as a nickname for
Guadalupe for many years; there is no evidence the nickname
originated with Arturo.
For his part, Arturo Arteaga denied inappropriately touching
Guadalupe Arteaga. Respondent’s witnesses, Hector Magana
(Magana), senior shipping and receiving lead, Manuel Arteaga,
Medina, Bugarin, and Arturo Arteaga’s uncle, denied seeing
him do so.19 Although Medina admitted that Guadalupe com-
plained to him that Arturo yelled at him, he denied that Guada-
lupe complained of inappropriate touching.
Respondent has a written sexual harassment prevention pol-
icy, which is contained within the handbook distributed to all
employees and posted by the entrance into the production plant
and in the lunchroom. Further, Elioff conducts yearly training
among hourly employees regarding the policy.
C. Warning and Suspension of Felipe Serrano
Serrano was an active union supporter, serving as the union
observer at the union election in October 2003, and as shop
steward thereafter.
On January 29, Respondent issued Serrano a final warning
and suspended him for 7 days. Respondent’s notice of warning
read:

16 In a letter he provided to Guadalupe Arteaga in January, Padilla
described Arturo Arteaga’s conduct with Guadalupe Arteaga as mutual
joking around, saying, “they always treat each other too informally.”
17 Arturo Arteaga denied inappropriate behavior with Anna Doster,
proprietor of the lunch truck with whom he was friendly and whom he
occasionally hugged. Doster corroborated his testimony, and I find her
credible.
18 In a letter he provided to Guadalupe Arteaga in January, Osorto
described Arturo Arteaga’s conduct with Guadalupe as joking around
and “struggling.”
19 Neither Magana’s nor Bugarin’s denial is entitled to any weight.
The former did not work the same shift as Arturo Arteaga, and the latter
admitted, under cross-examination, that Guadalupe and Arturo Arteaga
touched and shoved each other, playing around like children.
A copy of this memo is being given to you for the pur-
pose of clarifying your position with the company based
on unacceptable behavior you have exhibited recently, not
only with your fellow drivers, but with other company
personnel as well.
Previously, you were given a memo dated November
17, 2003 as a direct result of your continued volatile and
intimidating behavior while at work. That memo directly
referenced your unacceptable, discourteous, and abusive
behavior towards a supervisor, which was witnessed by
employees.
. . . .
A second incident involved two fellow drivers. In that
situation, you were once again verbally abusive, confron-
tational, antagonistic, intimidating and very disrespectful
according to the information given by these drivers.
The most recent incident occurred on January 26,
2004, and involved a warehouseperson in the Shipping &
Receiving Department on Monday, January 26th. This
display of unacceptable behavior was witnessed by several
individuals. Based on the company’s investigation of the
incident, including witness interviews, it was determined
that you were abusive, confrontational and antagonistic
towards a fellow employee.
Please be advised, however, that these are not the only
cases of unacceptable workplace behavior which you have
demonstrated.
Therefore, consistent with the company’s Global Busi-
ness Practices standards regarding abusive and intimidat-
ing behavior, and based on the facts summarized above,
coupled with our strict policy of zero tolerance towards
any acts of violence, you are hereby on notice that any fu-
ture incident of this nature will result in your immediate
discharge from the company.
Lastly, you are being suspended, without pay, for one
week starting immediately.
The incidents alluded to in the warning notice refer to the fol-
lowing circumstances:
November 17, 2003: Respondent issued a warning to
Mr. Serrano on for making an obscene gesture and deroga-
tory comments to his supervisor, Arturo Arteaga on No-
vember 16, 2003. There is no allegation this warning vio-
lated the Act.
Incident involving two fellow drivers: This item re-
lates to Mr. Serrano’s exchange with Mr. Garcia and Mr.
Maravilla, described above. According to Ms. Elioff, the
two employees told her that Mr. Serrano had called them
idiots for not attending union meetings. When the em-
ployees said they were not interested, Mr. Serrano became
belligerent and cursed the two, one of whom cursed back.
January 26, 2004: This item stems from a confronta-
tion between Mr. Serrano and Mr. Magana. Mr. Magana
testified that sometime around the end of January, shortly
after he gave Mr. Serrano a direction to move a trailer, Mr.
Serrano approached him in the presence of other employ-
ees and told Mr. Magana not to mess with him.
INTERNATIONAL BAKING CO. & EARTHGRAINS 1149
When Mr. Magana denied having done so, Mr.
Serrano said, “Don’t mess with me; you don’t know me.”
When Mr. Magana wanted to know if Mr. Serrano was
threatening him and what he intended to do, Mr. Serrano
said, “Keep it up, and you will see; you will regret it.” Mr.
Magana reported the incident to Mr. Medina and Ms.
Elioff. The General Counsel does not allege that Respon-
dent’s consequent warning to Mr. Serrano violates the Act.
D. Suspension and Termination of Maria Zarco
Dominguez worked in Respondent’s human resources office
beginning in about 1989. Her duties included review of em-
ployee work authorization forms, including Employment Au-
thorization Cards (work permits) issued by the U.S. Department
of Justice, Immigration and Naturalization Service, some of
which required annual renewal.
In 1994, employee Auria Chavez recommended that
Dominguez hire Zarco, whom she described as her sister, and
Respondent did so in October 1994. Then and later,
Dominguez socialized with Auria Chavez and other employees
who described themselves as sisters of Zarco and nationals of
Mexico. Dominguez, as well as her supervisor, Elioff, assumed
Zarco was also a Mexican national. Additionally, Elioff based
her belief that Zarco was from Mexico on her recollection that
the group, including Zarco, had at one time delegated one sister
to go to Mexico to care for their ailing mother.
On April 18, 2002, Local 37 petitioned for an election
among Respondent’s production and maintenance employees at
its Vernon facility. Zarco served as Local 37’s observer at the
election held July 9 and 10, 2002, which Local 37 lost by a
large margin.20 Following the election, Local 37 filed unfair
labor practice charges and objections to the election. In Au-
gust 2003, a hearing was held before an administrative law
judge (ALJ) on the charges and objections, at which Zarco gave
extensive testimony.21
All of Respondent’s alien employees, including Zarco, were
obligated by Federal law annually to obtain and provide to
Respondent employment authorization documents. Respondent
maintained a “tickler” system designed to alert its human re-
source department to work permit expirations due to occur
within 90 days so that the staff could remind employees of their
documentation responsibilities. Respondent conducted monthly
reviews of the tickler file and gave reminders to employees as
indicated.
Copies of work permits bearing Zarco’s picture, name, and
signature, for the years 1998–1999, 2000–2001, 2001–2002,
and 2003–2004 were received into evidence. Each showed
“Country of Birth” as “Guatemala.” According to Dominguez,
during her yearly reviews of Zarco’s employment authorization
cards, she failed to notice that the cards named Guatemala as

20 The facts concerning Local 37’s representation efforts and Zarco’s
participation therein are set forth in Sara Lee Bakery Group d/b/a In-
ternational Baking Co. & Earthgrains, supra.
21 On December 3, 2003, the ALJ, who largely discredited Zarco’s
testimony, issued his decision, finding Respondent had engaged in
certain unlawful and objectionable conduct. By order dated June 25,
the Board affirmed the administrative law judge’s decision and directed
that a second election be held. Ibid.
Zarco’s country of birth and never asked Zarco where she had
been born. After Respondent reduced human resource staffing
in 2001 or 2002, Dominguez’ supervisor, Elioff, began to assist
Dominguez in reviewing employee work permits, as needed.
In January 2004, while performing the monthly tickler file
review, Elioff saw that Zarco’s work permit was due to expire
in 90 days. Consistent with Respondent’s common practice,
Elioff reviewed Zarco’s permit22 and noticed the country of
origin stated thereon was Guatemala. As Elioff believed Zarco
was from Mexico and not Guatemala, she decided to obtain an
explanation.
According to Zarco, on January 13, the day after Respondent
terminated Guadalupe Arteaga, Magana, in the presence of
Manuel Arteaga asked Zarco what she would say if anyone
asked her if Arturo Arteaga played around with the drivers.
She answered that it was the truth that Arturo played around
with the drivers.23
The following morning, January 14, Zarco was called to
Elioff’s office. Zarco testified that Elioff told her she was
aware Guadalupe Arteaga was asking some employees to write
letters supporting his claim that he had problems with Arturo
Arteaga. Zarco said she had not given him any letter but that
she was thinking about whether to help him. Zarco reminded
Elioff that she had complained of Arturo’s conduct toward her.
Elioff told Zarco that was something that had to resolve itself,
adding that the people who wanted to help Guadalupe were
going to end up in trouble. Zarco said she had not given Gua-
dalupe any letter. Elioff said she was just telling her that peo-
ple who helped him were going to end up in trouble. Elioff
denied having any such conversation regarding Guadalupe
Arteaga.
According to Zarco, Elioff then changed the subject and told
Zarco that while checking work permits nearing expiration, she
had noticed an error on Zarco’s work permit. Pointing to the
word “Guatemala” that appeared under “Country of Birth” on
Zarco’s work permit, Elioff said, “There is a mistake—an error
in your permit. It says ‘Guatemala.’” Elioff told Zarco she
should go to an attorney and see about fixing the error, giving
her a week to do so. Zarco said she would see an attorney so
he/she could check and see what the error was.
Elioff gave a different version of her and Zarco’s exchange.
According to Elioff, she pointed to the word “Guatemala” on
Zarco’s work permit and said, “But we all know you are from
Mexico.” Zarco replied that she had “fixed” her papers like a
lot of other people have by saying they are from Guatemala.24
Elioff interrupted Zarco, saying, “Please don’t tell me anything
more that is going to make me have to terminate you. I prefer

22 Respondent routinely double-checked expiration dates by referring
to the work permits consequent to occasional employee defensiveness
about the reminders.
23 Both Magana and Manuel Arteaga denied this exchange. As
Zarco appeared to testify sincerely and forthrightly about the conversa-
tion, I credit her testimony.
24 A consequence of the Nicaraguan Adjustment and Central Ameri-
can Relief Act (NACARA) was that certain Guatemalans, inter alia,
were eligible for more favorable immigration treatment than Mexican
citizens, which could arguably provide a motive for misrepresenting
country of origin.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1150
to believe that the INS made a mistake on your work permit
and therefore what I am going to need for you to do is go to the
INS, let them know that this is an error on your work permit.
What they most likely will give you is a letter to bring back to
me confirming that they are going to rectify [the error] and I
will be able to have you come back to work.”
Later that day, Zarco wrote the letter Guadalupe Arteaga had
requested, describing her observations of Arturo Arteaga’s
conduct with the drivers. Regarding Elioff, Zarco wrote:
And now with the problem that happened with Arturo and J.
Guadalupe they threaten to fire me if I say something of what
I know. Irma Elioff has threatened me with calling immigra-
tion so they can deport me because that has always been the
threat and since I told them that I was only going to say the
truth and not lies she then told me that she gave me one week
to put my documents in order and if not she would have to
fire me and call immigration, and the motive was that I did
not want to collaborate with her she was also not going to do
it with me. She said that J. Guadalupe for having lied with re-
spect to the Union would have to leave and all the people that
were on his side. And for me to think about it and I had a
week to do so.
The next day, January 15, Zarco spoke to Alberto Salas
(Salas), an assistant in the office of Frank Carvajal, an immi-
gration attorney who had previously assisted Zarco in obtaining
her work permit. Zarco told him of her meeting with Elioff.
Salas asked what the error was, and Zarco said it was in the
place on the card where “Guatemala” was printed.25 Salas
checked on his computer and said it was no error; the current
card read the same as previous cards. Salas wrote the following
letter, which reads, in pertinent part:
We have handled the legalization of Maria Zarco Amaya, a
native of Guatemala. It is my understanding that an employer
may ask for a valid work permit and verify the permit. You
are free to do so. I do not understand why anyone would
have any doubts about the validity of her work permit. Any
other type of inquiry is unusual and probably not allowed by
law. . . . Please also read the notice from the BCIS on unfair
employment practices on immigration related matters.
On the following Monday afternoon, Zarco presented the let-
ter to Elioff, explaining that Salas said there was no mistake
regarding Guatemala. According to Zarco, Elioff said she
would call immigration and asked if Zarco would answer their
questions. When Zarco agreed to do so, Elioff changed her
mind. Telephoning Salas instead, she angrily spoke to him in
English, which Zarco does not understand. At the conclusion
of the conversation, Elioff told Zarco her attorney was commit-
ting fraud by putting Guatemala on her work permit, as she
knew Zarco and her sisters who also worked at the Vernon
facility were from Mexico. Zarco said the employees Elioff
referred to were not her sisters but her cousins, whom she
called sisters because they grew up together, and that she, her-

25 Salas’ testimony in this regard did not corroborate Zarco’s. Salas
testified that Zarco told him her supervisor was saying that Zarco was
not Guatemalan.
self, was born in Guatemala.26 She said that if Elioff had asked
where she was from, she would have told her, without wasting
her time getting a letter. Elioff asked why Zarco had not told
her she was from Guatemala. Zarco told Elioff she had never
asked her and suggested she call immigration. Elioff said she
would call INS the following day.
Elioff’s version of what transpired between her and Zarco
that day is significantly different. Elioff said that she told
Zarco the letter from Salas was not what she needed; rather, she
required a letter from the INS stating they would rectify the
error on Zarco’s work permit, which stated she was from Gua-
temala, to correctly read that she was from Mexico. Elioff then
telephoned Salas and told him essentially the same thing, after
which, utilizing the speaker feature of the telephone while Salas
was still listening, she translated what she had told him to
Zarco. When she had finished, Salas said, “That is fine,” and
they terminated the conversation.
The hearing was continued from April 7 to May 23, 2005, to
permit Salas to testify. Concerning his January 15 conversation
with Elioff, Salas said he told Elioff how she could verify the
validity of Zarco’s work permit. Elioff told him that she did
not question the validity of the work permit but said she knew
Zarco was Mexican, not Guatemalan. Salas told Elioff that at
some point Zarco had to have presented evidence to INS that
she was from Guatemala, which evidence had apparently satis-
fied INS. He suggested that Elioff speak to INS if she doubted
the veracity of the evidence. He told Elioff that the company’s
only legal obligation was to copy Zarco’s work permit and keep
it on file, but if she felt the Company had to do more, a letter to
INS would cover the Company’s obligations. Elioff told Salas
that Respondent was going to fire Zarco for falsifying immigra-
tion documents because the Company could get into trouble.27
I have carefully considered all relevant testimony in deter-
mining whether to accept Zarco or Elioff’s account of their
conversations. Zarco testified, essentially, that she did not
understand Elioff doubted the accuracy of Zarco’s stated coun-
try of origin. Yet, by Zarco’s account, Elioff specifically
pointed to “Guatemala” as being erroneous. Moreover, Salas
testified that Zarco told him she was having trouble with a su-
pervisor at work who said Zarco was not Guatemalan. It is not
plausible that Zarco did not comprehend Elioff’s concern, and
her implausible testimony on this point reflects poorly on her
credibility. Further, Zarco’s written account of her conversa-
tion with Elioff differs significantly from her testimony at the
hearing. In her January 14 letter, Zarco recounted neither
Elioff’s statement that she knew employees were writing letters

26 At the hearing, Zarco denied her country of origin was Mexico. I
declined to permit Respondent to adduce additional evidence regarding
Zarco’s origin and her immigration status. The relevant evidence is
what Respondent believed regarding Zarco’s status at the time of her
termination and whether it held the belief in good faith or was moti-
vated by considerations unlawful under the Act. Ascertaining Zarco’s
actual status months after her discharge neither establishes Respon-
dent’s motive nor significantly bears on credibility.
27 Although Salas could not, at the hearing, independently recall
Elioff’s having made that statement, he confirmed that he had so at-
tested to a Board agent during the investigation stage of this matter and
that subsequent illness and medication had affected his recall.
INTERNATIONAL BAKING CO. & EARTHGRAINS 1151
supporting Guadalupe nor her threat that all employees who
helped Guadalupe would end up in trouble, both of which de-
tails are so noteworthy that it is unlikely Zarco would have
neglected to include them in her letter had the statements been
made. Zarco wrote, essentially, that Respondent had threatened
“to fire [her] if [she said] something of what [she] knew,” but
that is also not consistent with Zarco’s testimony. Given these
inconsistencies, I cannot accept Zarco’s testimony of her con-
versation with Elioff, and I accept Elioff’s account.
On Thursday, Elioff telephoned Zarco and told her the com-
pany attorneys had decided she should be fired. According to
Elioff, she told Zarco that Respondent could not allow her to
work knowing that her work permit was not legal. Thereafter,
Respondent sent Zarco a termination notice dated January 22,
in which the reason for termination noted, “Voluntary Resigna-
tion.”28
V. DISCUSSION
A. Independent Violations of Section 8(a)(1) of the Act
1. Legal principles
Section 8(a)(1) of the Act provides that “It shall be an unfair
labor practice for an employer . . . to interfere with, restrain, or
coerce employees in the exercise of the rights guaranteed in
Section 7 [of the Act].” In considering communications from
an employer to employees, the Board applies the “objective
standard of whether the remark tends to interfere with the
free exercise of employee rights. The Board does not con-
sider either the motivation behind the remark or its actual
effect. Miller Electric Pump & Plumbing, 334 NLRB 824
(2001). Communications from an employer to employees that
threaten reprisal for supporting a labor organization, or promise
benefit for not doing so, interfere with, restrain, or coerce em-
ployees as contemplated by Section 8(a)(1). Manhattan
Crowne Plaza Town Park Hotel Corp., 341 NLRB 619 (2004);
Grouse Mountain Lodge, 333 NLRB 1322 fn. 2 (2001).
The Board has adopted a totality-of-the-circumstances test in
determining whether questioning of an employee constitutes
unlawful interrogation. Rossmore House, 269 NLRB 1176
(1984), affd. sub nom. Hotel Employees Union Local 11 v.
NLRB, 760 F.2d 1006 (9th Cir. 1985). The Board also consid-
ers the following criteria called “the Bourne factors:”29
(1) Background, i.e. history of employer hostility and
discrimination.
(2) Nature of information sought, e.g. on which to base
employment action.
(3) Identity of the questioner, i.e. place in company hi-
erarchy.
(4) Place and method of interrogation, e.g. casual or
formal.
(5) Truthfulness of the reply.
Ultimately, the Board’s task is to “determine whether under all
the circumstances the questioning at issue would reasonably

28 Although Respondent contends Zarco resigned, clearly Respon-
dent terminated her.
29 First set out in Bourne v. NLRB, 332 F.2d 47, 48 (2d Cir. 1964).
tend to coerce the [questioned] employee so that he or she
would feel restrained from exercising rights protected by Sec-
tion 7 of the Act.” Westwood Health Care Center, 330 NLRB
935, 940 (2000). The interrogation occurring herein is evalu-
ated under those standards.
It is unlawful under Section 8(a)(1) of the Act for an em-
ployer to create an impression that it is watching or monitor-
ing its employees’ protected union activity, or in other
words, to create an impression of surveillance. The under-
lying premise is that employees should be free to participate
in union activity without fearing that members of manage-
ment are peering over their shoulders, noting who is in-
volved in union activities and to what extent or how.
“‘[T]he test for determining whether an employer has cre-
ated an impression of surveillance is whether the em-
ployee[s] would reasonably assume from the statement in
question that [their] union activities had been placed under
surveillance.’ Tres Estrellas de Oro, 329 NLRB 50, 51
(1999).” St. Thomas Gas, 336 NLRB 711, 719–720 (2001).
It is not necessary that employees attempt to keep their activi-
ties secret to create a violation, and it is not necessary that the
employer’s words indicate the information has been obtained
illegally. Grouse Mountain Lodge, 333 NLRB at 1322–1323.
2. Supervisory conduct
A. Arturo Arteaga violated Section 8(a)(1) of the Act by the
following conduct:
1. In September 2003, asking Guadalupe Arteaga if he had
signed a union card, saying he knew seven drivers had and that
he had been told one of the signators was named “Arteaga.”
Arturo’s statements constituted unlawful interrogation and
unlawfully created the impression of surveillance.
2. On later occasions, by directing Guadalupe Arteaga to tell
him if he knew anything about the Union and to tell him which
employees had “voted” for the Union, engaging in unlawful
interrogation and unlawfully requesting employees to report
to Respondent the union activities of other employees. Arm-
strong Machine Co., 343 NLRB 1149, 1150 (2004); Fixtures
Mfg. Corp., 332 NLRB 565 (2000).
3. Telling Guadalupe Arteaga that even if employees had
not “signed,” they would have to leave, thereby threatening
reprisals for union activity.30
B. Sara Dominguez violated Section 8(a)(1) of the Act by
the following conduct:
1. Prior to the October election, asking Guadalupe Arteaga
if he knew something about the Union, which constituted
unlawful interrogation.
2. Impliedly threatening Guadalupe Arteaga with unspeci-
fied reprisals by conjoining a comment on his seniority and his
“decent” pay rate with an admonition that the Union would
harm him and that it would be better for him not to sign a union
card. It is reasonable to conclude that Dominguez’ statement

30 Counsel for the General Counsel argues that Arturo Arteaga also
interrogated Sanchez. I have not accepted Sanchez’ testimony to that
effect. I have found only that Arturo Arteaga told Sanchez to be careful
whom he voted for. Such an admonition, without any accompanying
intimation of harmful consequences, is not coercive.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1152
must have conveyed a message that union support would nega-
tively impact Guadalupe’s seniority and pay level. See Reno
Hilton, 319 NLRB 1154, 1155 (1995). Dominguez gave Gua-
dalupe no explanation as to how supporting the Union might
harm him, leaving him to infer that the harm might arise from
subjective factors within Respondent’s control.
C. Manuel Arteaga violated Section 8(a)(1) of the Act by
the following conduct:
1. Prior to the October election, asking Guadalupe Arteaga
and Sanchez if they knew which employees had signed union
cards.
2. Informing the two employees that Respondent would out-
source their work. Although Respondent’s later outsourcing of
its delivery work may have been lawful, Manuel Arteaga’s
suggestion to employees that it was linked to their union activi-
ties is coercive even if his statement were untrue. Moreover,
the statement evidences Respondent’s hostility toward employ-
ees’ union activities. Paragon Pattern & Mfg. Co., 342 NLRB
167 (2004).
3. Telling Guadalupe that he knew who the union leader and
the card signers were created an impression of surveillance.
4. Admonishing Sanchez not to “do wrong by us,” in the
upcoming election unlawfully equated loyalty to the company
with opposition to the Union. The clear suggestion that voting
for the Union would “wrong” Respondent is coercive and vio-
lates Section 8(a)(1) of the Act.
5. Following the election, telling Guadalupe he knew how
he voted created an impression of surveillance.
D. Jesse Medina violated Section 8(a)(1) of the Act by the
following conduct:
1. On various occasions, set forth above, asking Guadalupe
Arteaga if he knew anything about the Union and adjuring him
to tell the truth about any involvement, all of which constitutes
unlawful interrogation.
2. Telling Guadalupe that he knew he was comfortable in
his job and that he should think about the Union, as it was not a
good thing. By linking Guadalupe’s current job comfort with
abstention from union adherence, Medina impliedly threatened
Guadalupe with unspecified reprisals, as the reasonable infer-
ence to be drawn from his statement was that union support
would disturb Guadalupe’s contentment.
3. On various occasions, asking Serrano who organized the
drivers and soliciting him to find out who wanted the Union
and who had signed authorization cards, all of which consti-
tutes unlawful interrogation.
4. Prior to the election, telling Serrano not to invite other
employees to a union meeting, under penalty of adverse conse-
quences, thus interfering with Serrano’s Section 7 rights.
E. Irma Elioff did not violate the Act by her cross-
examination of Serrano at the unemployment hearing:
Counsel for the General Counsel argues that a cross-
examination question posed by Elioff to Serrano during the
course of Guadalupe Arteaga’s unemployment hearing consti-
tuted a threat of unspecified reprisals against Serrano for having
testified in support of another employee’s unemployment insur-
ance claim. Elioff asked Serrano if he was, at that time, in
“final warning” status, which he was. While such a question
could be viewed as a reminder to Serrano that he was on shaky
disciplinary ground with Respondent and had better mind how
he testified, Elioff asserts that her intent in asking the question
was solely to bring to the unemployment ALJ’s attention the
fact that Serrano arguably had reason to be disgruntled with
Respondent. There is no evidence Respondent otherwise
threatened or coerced any employee in connection with his/her
testimony at the unemployment hearing, and there is no evi-
dence to justify ascribing to Elioff any improper motivation in
raising a legitimate credibility issue in that forum. Accord-
ingly, I conclude the General Counsel has not proved Elioff
engaged in 8(a)(1) conduct in this instance, and I shall dismiss
this allegation of the complaint.
F. Statements made in Respondent’s preelection meetings
with drivers:
In examining union campaign statements made by an em-
ployer to its employees, neither the subjective reactions of em-
ployees nor the intent of the speaker are determinative in find-
ing 8(a)(1) violations. President Riverboat Casinos of Mis-
souri, Inc., 329 NLRB 77 (1999); Swift Textiles, 242 NLRB
691 fn. 2 (1979). Rather, “the issue is whether objectively . . .
remarks reasonably tended to interfere with the employee’s
right to engage in [a] protected act.” Southdown Care Center,
308 NLRB 225, 227 (1992). As noted above, I have credited
the testimony of Elioff, Medina, and Dominguez regarding
what was said at employee meetings. The General Counsel
asserts that even disregarding employee testimony, Respon-
dent’s evidence proves that Respondent unlawfully conveyed to
its drivers the message that, “one way or another, either by
strikes, the collective-bargaining agreement or by subcontract-
ing, employees would lose their jobs if the Teamsters Union
won the election.” Counsel for the General Counsel’s censure
of Elioff’s preelection statements is three-pronged: (1) the
statements threatened the likelihood of future union-called
strikes and concomitant job loss if employees selected the Un-
ion; (2) the statements threatened outsourcing of product deliv-
ery if employees selected the Union; (3) the statements threat-
ened adherence to an inflexibly punitive disciplinary system
upon negotiation of a union contract.
As for Elioff’s statements concerning strikes, the script
shows she accused the Teamsters of striking more frequently
than any other union in the country and explained that strikes
can occur when a company and a union do not agree to contract
terms during negotiations. Elioff did not imply the company
would not conduct contract negotiations in good faith or that
the union would have to strike to gain reasonable demands, or
that union representation would inevitably lead to strikes and
job loss. Rather, it appears that Elioff accurately outlined what
may occur when an employer and a union reach valid impasse
during bargaining. The Board has approved campaign lan-
guage that discusses the economic realities of the bargaining
process. J. R. Wood, Inc., 228 NLRB 593, 593–594 (1977).
Applying the Board’s Southdown standard to her remarks, I
cannot find that Elioff’s description of strike potential or con-
sequences unlawfully interfered with employees’ Section 7
rights.
A threat to outsource or subcontract work because employ-
ees elect to be represented by a union is unlawful. MPG
Transport, Ltd., 315 NLRB 489 fn. 1 (1994). As for Elioff’s
INTERNATIONAL BAKING CO. & EARTHGRAINS 1153
statement concerning delivery outsourcing, she neither threat-
ened that Respondent would predicate outsourcing on employ-
ees’ representational decision nor suggested that outsourcing
would be accomplished without reference to any elected repre-
sentative. She merely notified the drivers that Respondent
would consider the costs of in-house versus subcontracted de-
livery and that delivery as well as production costs had to corre-
late to earnings, a fundamental facet of entrepreneurial plan-
ning, which could not reasonably have surprised or alarmed
employees. I do not find Respondent’s stated intention to con-
sider lawful economic strategies in operating its business vio-
lated Section 8(a)(1) of the Act.
Finally, Elioff told employees, essentially, that if a future un-
ion contract contained a disciplinary procedure, Respondent
would have to adhere to it even for such minutiae as reporting
for work 5 minutes late. Viewed objectively, this statement
carries with it both an implied promise (continuation of the
current, presumably flexible, disciplinary approach if the
drivers rejected the Union) and an implied threat (confor-
mity to strict disciplinary procedures if the drivers chose
union representation). I find, therefore, that Elioff’s state-
ment regarding the potential impact of a contractual disci-
plinary procedure violated Section 8(a)(1) of the Act.
B. Suspension and Termination of Guadalupe Arteaga
Respondent’s motivation in suspending and terminating
Guadalupe Arteaga on January 12 and 13, respectively, is in
dispute. In resolving that issue, the Board’s analytical guide-
lines in Wright Line,31 control. If the General Counsel’s evi-
dence supports a reasonable inference that union activity was a
catalyzing factor in Respondent’s suspension and subsequent
discharge of Guadalupe Arteaga, he has made a prima facie
showing of unlawful conduct. “The General Counsel must
establish four elements by a preponderance of the evidence.
First, the General Counsel must show the existence of activity
protected by the Act. Second, the General Counsel must prove
that the respondent was aware that the employee had engaged
in such activity. Third, the General Counsel must show that the
alleged discriminatee suffered an adverse employment action.
Fourth, the General Counsel must establish a motivational link,
or nexus, between the employee’s protected activity and the
adverse employment action.” [Citation omitted.] American
Gardens Management Co., 338 NLRB 644, 645 (2002). If the
General Counsel establishes these four elements, the burden of
proof then shifts to Respondent to establish persuasively by a
preponderance of the evidence that it would have made the
same decision, even in the absence of protected activity.32
Avondale Industries, 329 NLRB 1064 (1999); T & J Trucking
Co., 316 NLRB 771 (1995).
The evidence herein clearly establishes that Guadalupe
Arteaga was an active union supporter. As evidenced by the

31 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert.
denied 455 U.S. 989 (1982).
32 A “preponderance” of evidence means that the proffered evidence
must be sufficient to permit the conclusion that the proposed finding is
more probable than not. McCormick on Evidence, at 676–677 (1st ed.
1954).
supervisory violations of Section 8(a)(1) detailed above, Re-
spondent bore animosity toward its drivers’ union activities.
Through interrogation, Respondent’s supervisors made re-
peated efforts to ascertain the identities of the union proponents
among the drivers. By creating the impression of surveillance
and by making veiled threats of reprisal, Respondent’s supervi-
sors also tried to quell union support. Following the election,
Respondent learned that Guadalupe Arteaga had, indeed, voted
for the Union when he admitted as much to Manuel Arteaga,
fellow supervisor of and cousin to Arturo Arteaga. Moreover,
Guadalupe Arteaga professed to have done so in hope of ob-
taining better treatment from Arturo Arteaga, whose later com-
plaint formed the basis for both suspension and discharge. It is
reasonable to infer that Arturo Arteaga might bear particular
animosity toward Guadalupe Arteaga who had, prior to the
election, consistently denied union participation in response to
Arturo’s questions. In these circumstances, I conclude the
General Counsel has made “an initial ‘showing sufficient to
support the inference that protected conduct was a motivating
factor’” in Respondent’s decision to suspend and terminate
Guadalupe Arteaga. American Gardens Management Co.,
supra.33 The burden of proof therefore shifts to Respondent to
show that Guadalupe Arteaga’s termination would have (not
just could have) occurred even in the absence of his union sup-
port. Avondale Industries, supra at 1066.
In assessing Respondent’s evidence of lawful purpose in
suspending and terminating Guadalupe Arteaga, I recognize the
fact that an employer’s desire to retaliate against an employee
or to curtail protest does not, of itself, establish the illegality of
a termination. If an employee provides an employer with suffi-
cient cause for dismissal by engaging in conduct that would, in
any event, have resulted in termination, the fact the employer
welcomes the opportunity does not render the discharge unlaw-
ful. Avondale Industries, supra; Klate Holt Co., 161 NLRB
1606, 1612 (1966). The correlative canon, of course, is that if
an employer’s motive is unlawful, it is immaterial that a legiti-
mate reason for dismissal may exist. E & L Transport Co., 331
NLRB 640 (2000). Further, it is well established the Board
“cannot substitute its judgment for that of the employer and
decide what constitutes appropriate discipline.” Detroit Panel-
ing Systems, 330 NLRB 1170, 1171 fn. 6 (2000), and cases
cited therein. Nonetheless, the Board’s role is to ascertain
whether an employer’s proffered reasons for disciplinary action
are the actual ones. Ibid.
Two questions must be answered to permit an informed de-
termination of Respondent’s motivation: (1) Did Arturo
Arteaga truthfully report the facts of his January 12 confronta-
tion with Guadalupe Arteaga to upper management; and, as a
corollary question, if not, did he misreport the incident because

33 I do not agree with the General Counsel that Elioff’s January 12
e-mail to headquarters evidenced animus. Elioff referred to having
“treaded lightly” in cases of driver insubordination that had resulted
from their “having voted in the union.” It does not follow that because
Respondent may, accurately or inaccurately, have perceived negative
postelection alteration in some employees’ behavior, it therefore bears
animosity toward union activity.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1154
of his animosity toward Guadalupe’s union activities?34 (2)
Even assuming Arturo accurately recounted to management
what had occurred between him and Guadalupe, did Respon-
dent suspend and terminate Guadalupe because he assaulted
Arturo or because he had supported the Union in its recent and
successful representation bid?
In considering whether Arturo Arteaga accurately reported
his January 12 confrontation with Guadalupe Arteaga, I have
carefully examined all accounts of the incident. I note that
Arturo has consistently held to his version of what occurred,
while Guadalupe has given inconsistent accounts. Thus, Gua-
dalupe testified that he did not attack Arturo but only reacted to
Arturo’s vicious and unprovoked frontal assault on his testicles;
yet his unemployment testimony suggests that Arturo assaulted
him from behind whereupon he “turned around desperately,”
and he told both Elioff and Zarco that he and Arturo were play-
ing around at work, adding to Zarco that he initiated first con-
tact by grabbing Arturo from behind. Guadalupe’s corroborat-
ing witness, Serrano, also gave inconsistent reports at the hear-
ing, Serrano said he saw Arturo grab Guadalupe by the “balls,”
which was essentially consistent with his testimony at Guada-
lupe’s unemployment hearing, but in a contemporaneous writ-
ten account, he wrote that he saw Arturo grab Guadalupe on the
butt. Moreover, Serrano’s unemployment testimony of Arturo
and Guadalupe facing each other at the time of Arturo’s attack
did not agree with Guadalupe’s instant testimony that Arturo
was at his side when he assaulted him. Given the vacillatory
testimony of the General Counsel’s witnesses regarding the
January 12 confrontation between Arturo and Guadalupe
Arteaga, I cannot accept their accounts. Accordingly, I give
weight to Arturo Arteaga’s testimony of what occurred. Since
I find that Arturo Arteaga did not attack Guadalupe Arteaga,
it is unnecessary for me to consider those cases in which the
Board and the courts reject misconduct defenses where the
employer provokes an employee to the point where he
commits an indiscretion and then relies on his conduct to
terminate him. See, e.g., NLRB v. M & B Headwear Co.,
349 F.2d 170, 174 (4th Cir. 1965). In light of this finding, I
also find it unnecessary to determine whether Arturo had a
proclivity for unseemly sexual interaction with others.
My conclusion that Arturo Arteaga did not attack Guadalupe
Arteaga does not end the matter, however; it still must be de-
termined whether Respondent actually suspended and termi-
nated Guadalupe because he assaulted Arturo, or whether ani-
mus toward Guadalupe’s union activities motivated Respondent
to seize upon the incident to rid itself of a union supporter.
Direct evidence of unlawful motivation is seldom avail-
able, and unlawful motivation may be established by cir-
cumstantial evidence, the inferences drawn therefrom, and
the record as a whole. Tubular Corp. of America, 337 NLRB
99 (2001); Abbey Transportation Service, 284 NLRB 689,

34 In the latter situation, even if Respondent relied in good faith upon
Arturo Arteaga’s report, Guadalupe Arteaga’s discipline would violate
the Act, as Respondent is bound by the acts of its supervisor, e.g.,
falsely accusing an employee of misconduct in retaliation for his union
activities. Dobbs International Services, 335 NLRB 972, 973 (2001).
701 (1987); Shattuck-Denn Mining Corp., 362 F.2d 466,
470 (9th Cir. 1966). Indications of discriminatory motive may
include expressed hostility toward the protected activity,35
abruptness of the adverse action,36 timing,37 failure to conduct a
full and fair investigation,38 disparate treatment,39 and/or depar-
ture from past practice.40 There is no overt evidence of union
animus directed specifically toward Guadalupe Arteaga, but
circumstances, as described above, exist from which it is rea-
sonable to infer animus. However, no suspicious timing exists
herein. Guadalupe’s union activity attracted supervisory atten-
tion prior to the October 2003 election, but there is no clear
evidence that Respondent continued its antiunion conduct
thereafter. While Respondent’s action in suspending and termi-
nating Guadalupe was certainly abrupt, the immediacy of it is
reasonably explained as a justifiable reaction to an employee’s
assault on his supervisor. Further, there is no evidence of dis-
parate treatment or departure from past practice. Respondent
has, at all relevant times, had a zero-tolerance-for-violence
policy, and there is no evidence Respondent disregarded or
minimized that policy.
Counsel for the General Counsel argues that Respondent
evidenced discriminatory motivation by conducting a cursory
investigation of Arturo and Guadalupe’s confrontation. While
Elioff did not interview every potential witness, there is no
evidence Respondent sought to shape or distort its inquiry or
engaged in sham fact gathering. And while it is also true Elioff
refused to identify Respondent’s witnesses for Guadalupe or to
let him confront Arturo, “[I]t is not the province of the Board
to assure that employees can confront their accusers. An
employer’s failure to accord an employee this asserted
‘right’ does not establish a discriminatory motive.” Chart-
wells Compass Group, USA, Inc., 342 NLRB 1155 (2004).
Respondent provided Guadalupe reasonable information
regarding the nature of his misconduct, and, although inter-
viewing the subject employee is not a requirement for an ade-
quate investigation,41 gave him an opportunity to tell his side
of the story. Counsel for the General Counsel also asserts
that Elioff’s refusal to permit Guadalupe to have union rep-
resentation during her interview with him is evidence of
“profound hostility to the Union campaign.” Respondent
had no legal obligation to admit a union representative into
the interview, and I cannot infer animus from Elioff’s de-
clining to do so.
Counsel for the General Counsel further contends that
Elioff’s January 12 e-mail to headquarters showed a close-
minded determination to terminate Guadalupe Arteaga re-
gardless of what any investigation showed, which obduracy
reveals unlawful motivation. However, Elioff prepared the

35 Mercedes Benz of Orland Park, 333 NLRB 1017 (2001).
36 Dynabil Industries, 330 NLRB 360 (1999).
37 McClendon Electrical Services, 340 NLRB 613 fn. 6 (2003); Beth-
lehem Temple Learning Center, 330 NLRB 1177 (2000).
38 Bonanza Aluminum Corp., 300 NLRB 585 (1990).
39 NACCO, 331 NLRB 1245 (2000).
40 Sunbelt Enterprises, 285 NLRB 1153 (1987).
41 Frierson Building Supply Co., 328 NLRB 1023 (1999).
INTERNATIONAL BAKING CO. & EARTHGRAINS 1155
e-mail after having spoken to Arturo Arteaga and another
employee about the incident. From their accounts, she had
initial knowledge of what had occurred, and no valid reason
has been shown why Elioff should not have believed Arturo’s
account. See American Thread Co., 270 NLRB 526 (1984).
She was, therefore, entitled to give a preliminary recom-
mendation as to disciplinary disposition of the matter. In
short, neither Respondent’s investigation of Guadalupe
Arteaga’s behavior nor its consequent termination proceeding
evidences animus.
Finally, counsel for the General Counsel argues that dis-
charge is an extreme penalty, which should not be applied to an
otherwise exemplary employee. However, Respondent’s action
is not disproportionate to the offense even for a commendable
worker. The Board has recognized that changes in the work-
place environment require serious employer attention to poten-
tial workplace violence,42 and Guadalupe Arteaga’s discharge
for violence toward his supervisor is neither unreasonable nor
contrived. See Montgomery Ward & Co., 316 NLRB 1248,
1253 (1995), enfd. 97 F.3d 1448 (4th Cir. 1996). Accordingly,
I find Respondent met its burden of showing Guadalupe
Arteaga’s discharge would have occurred even in the absence
of his union activities. Respondent did not, therefore, violate
Section 8(a)(3) and (1) of the Act by discharging Guadalupe
Arteaga.
C. Warning and Suspension of Felipe Serrano
Serrano was a high profile union supporter, serving as union
observer at the October 2003 union election and as shop stew-
ard thereafter. The General Counsel contends that Respon-
dent’s January 29 warning to Serrano and his consequent 7-day
suspension were motivated by its animus toward his union ac-
tivities. The Board’s analytical guidelines in Wright Line, su-
pra, control. As explained in detail above, if the General Coun-
sel’s evidence supports a reasonable inference that union activ-
ity was a catalyzing factor in Respondent’s warning and sus-
pension of Serrano, he has made a prima facie showing of
unlawful conduct. The burden of proof then shifts to Respon-
dent to establish persuasively by a preponderance of the evi-
dence that it would have made the same decision, even in the
absence of protected activity.
With regard to the discipline given Serrano, it is undisputed
that the General Counsel has established the first three of four
elements the Board set forth in American Gardens Management
Co., supra, the General Counsel has shown that Serrano en-
gaged in protected activity; the General Counsel has proved
that Respondent was aware of Serrano’s protected activity, and
the General Counsel has shown Serrano suffered an adverse
employment action. Respondent contends, however, that the
General Counsel has not met the fourth element, i.e., establish-
ing a motivational link, or nexus, between Serrano’s protected
activity and the discipline given him.
With regard to the fourth element, it is clear from Serrano’s
warning notice that Respondent based Serrano’s discipline, at
least in part, on certain of Serrano’s union-related activity. The
warning notice cites as one item of unacceptable workplace

42 IBM Corp., 341 NLRB 1288, 1290 (2004).
behavior the following:
A second incident involved two fellow drivers. In that situa-
tion, you were once again verbally abusive, confrontational,
antagonistic, intimidating and very disrespectful according to
the information given by these drivers.
This incident referred to Serrano’s September 2003 exchange
with two other drivers in which he criticized their refusal of his
invitation to attend a union meeting, perhaps disparaged their
intelligence, and traded profanities with one of them. Respon-
dent contends that Serrano’s behavior to the two employees lost
him the protection of the Act that he would otherwise have
enjoyed in soliciting employees to participate in union meet-
ings. The Board has stated that verbal abuse and profane lan-
guage are not “an inherent part of Section 7 activity. [Citation
omitted.]” Lutheran Heritage Village, 343 NLRB 646
(2004). The Board also recognizes that an employer may
prohibit “abusive or threatening language” in a desire to
maintain order and avoid liability for workplace harassment.
An employer may not, however, exercise valid prohibitions
so as to prohibit activity protected by Section 7. Ibid. The
question of whether particular employee activity involving
verbal abuse or profanity is protected by Section 7 turns on
the specific facts of each case. See Atlantic Steel, 245
NLRB 814, 816 (1979) (employee’s use of abusive lan-
guage may be unprotected depending on circumstances of
case including nature of outburst); Key Food, 336 NLRB
111 (2001) (employee’s profane and abusive tirade not so
unreasonable in relation to the employer’s provocation as to
justify discharge); Chartwells Compass Group, USA, Inc.,
supra (employer may not lawfully discipline an employee
for making prounion statements that merely make another
employee feel uncomfortable.)
The pertinent question here is whether Serrano’s Septem-
ber 2003 conduct was so egregious as to forfeit the protec-
tion of the Act. I find it was not. Serrano merely, and pro-
tectedly, invited coworkers to attend a union meeting.
When they declined, his animadversion on their characters
was neither extensive nor threatening. Although Serrano
used profanity, as did one of the invitees, record evidence
suggests the use of profane language among Respondent’s
drivers was commonplace and thus neither intrinsically in-
timidating nor opprobrious. See Lutheran Heritage Village,
supra at fn. 7. While duplicative solicitations of unwilling
coworkers might have constituted harassment,43 Serrano did
not persist in his invitation to the two employees or even
repeat it. Accordingly, I find that Serrano’s September
2003 conduct was protected, that Respondent’s inclusion of
that conduct in his warning notice violated Section 8(a)(1)
of the Act,44 and that the General Counsel has made a prima

43 See Lutheran Heritage Village, supra at fn. 13.
44 Although the General Counsel did not specifically allege the in-
clusion of this incident in Serrano’s warning notice as an independent
violation of the Act, the issue is closely connected to the subject matter
of the complaint and has been fully litigated. See Atlantic Veal &
Lamb, Inc., supra.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1156
facie showing that Respondent violated the Act by warning and
suspending Serrano on January 29. The burden of proof thus
shifts to Respondent to establish persuasively by a preponder-
ance of the evidence that it would have imposed the same dis-
cipline without relying on the September 2003 incident.
Even excluding the September 2003 incident, Serrano’s
January 29 warning and suspension relied on cumulative mis-
conduct, including a previous warning issued November 17,
2003, for “discourteous and abusive behavior towards a super-
visor,” and “abusive, confrontational and antagonistic” behav-
ior toward leadman Magana on January 26. The General Coun-
sel does not contend that the November 2003 warning notice
violated the Act. As for the latter incident, the specifics of
Serrano’s January 26 confrontation with Magana are that he
threatened Magana with implicit violence in front of other em-
ployees in response to what Serrano perceived as Magana’s
disrespectful finger-snapping manner of assigning him a task.
The General Counsel does not contend, and I cannot find, that
Magana’s direction to Serrano was given so insultingly and
provocatively as to justify Serrano’s response. See, e.g.,
NLRB v. M & B Headwear Co., supra. Therefore, it is un-
disputed that Serrano engaged in misconduct on both occa-
sions. Respondent argues that it would have issued Serrano
the warning and suspension based solely on his November
2003 and January 26 misconduct, as both related to disre-
spect for and an undermining of Respondent’s authority in
directing its employees.
As noted above, it is well established the Board “cannot sub-
stitute its judgment for that of the employer and decide what
constitutes appropriate discipline.” Detroit Paneling Systems,
Inc., supra, and cases cited therein. While trivial and insub-
stantial misconduct resulting in discharge may raise a
“strong inference of retaliatory motive,”45 Serrano’s No-
vember 2003 and January 26 conduct cannot be considered
either trivial or insubstantial. Each incident showed signifi-
cant disrespect for employer authority, the latter involving
potential workplace violence, a legitimate employer concern,46
minimalization of which could result in calamitous conse-
quences. Given the undisputed evidence that Serrano com-
mitted serious and similar infractions within a 2-month pe-
riod, I find no basis on which to conclude Respondent
would not have discharged him for those two infractions
alone. See Amber Foods, Inc., 338 NLRB 712, 717 fn. 16
(2002). Accordingly, I find Respondent met its burden of
showing Serrano’s discharge would have occurred even in the
absence of his union activities and even in the absence of its
unlawful inclusion of the September 2003 incident in his warn-
ing notice. Respondent did not, therefore, violate Section
8(a)(3) of the Act by discharging Felipe Serrano.
D. Suspension and Termination of Maria Zarco
The General Counsel contends that Respondent, on January
13 and 22, respectively, suspended and terminated Zarco in
violation of Section 8(a)(4) of the Act because she testified at a

45 Id. at 1171.
46 IBM Corp., supra.
hearing before the Board. Section 8(a)(4) makes it unlawful
to discharge or otherwise discriminate against an employee
because she has filed charges or given testimony at a Board
proceeding. A Wright Line analysis applies in 8(a)(4) cases.
American Gardens Management Co., supra at 645.
To reiterate, under Wright Line, the General Counsel
must establish four elements by a preponderance of the evi-
dence. First, the General Counsel must show the existence
of activity protected by the Act. Second, the General Coun-
sel must prove that the respondent was aware that the em-
ployee had engaged in such activity. Third, the General
Counsel must show that the alleged discriminatee suffered
an adverse employment action, and finally the General
Counsel must establish a motivational link, or nexus, be-
tween the employee’s protected activity and the adverse
employment action. American Gardens Management Co.,
id. Once the General Counsel has made the showings re-
quired above, the burden shifts to the Respondent to prove
that it would have discharged the employee even in the ab-
sence of the protected conduct.
In August 2003, Zarco testified extensively at an unfair labor
practice and objections hearing arising from Local 37’s 2002
representation campaign and election among Respondent’s
production and maintenance employees.47 Zarco was unques-
tionably engaged in activity protected by the Act when she
testified, which establishes the first element of the Wright Line
analysis. Respondent was well aware of Zarco’s protected
participation in the Board hearing, and that, coupled with Re-
spondent’s January suspension and discharge of Zarco, answers
Wright Line’s knowledge and adverse employment-action ele-
ments. Thus, the General Counsel has met the first three ele-
ments of the Wright Line burden. However, the evidence
herein does not so easily satisfy Wright Line’s fourth element,
i.e., that “the General Counsel must establish a motivational
link, or nexus, between the employee’s protected activity and
the adverse employment action.” American Gardens Man-
agement Co., id.
There is no evidence any supervisor or agent of Respondent
ever expressed animosity toward Zarco for her August 2003
testimony against the Company.48 On January 13, the day fol-
lowing Guadalupe Arteaga’s discharge, Magana, in the pres-
ence of Supervisor Manuel Arteaga, essentially questioned
Zarco as to whether she would rally to Guadalupe’s support.49
It is reasonable to infer that Magana and Manuel Arteaga had
Zarco’s past willingness to testify against Respondent in mind
when they sought to ascertain if she intended to support Guada-

47 The administrative law judge’s decision issued on December 2,
2003, generally discrediting Zarco’s testimony, but finding Respondent
had violated Sec. 8(a)(1) and (3) of the Act and had engaged in objec-
tionable conduct, requiring a new election.
48 Although counsel for the General Counsel presented some testi-
mony that Respondent imposed more onerous work duties and condi-
tions on Zarco after the 2003 hearing, the evidence was not well devel-
oped, and I cannot draw any inferences of animus from it.
49 Manuel Arteaga’s silence during this exchange constitutes super-
visory acquiescence in the questioning, which is thus chargeable to
Respondent.
INTERNATIONAL BAKING CO. & EARTHGRAINS 1157
lupe in his expected protest against his discharge, but there is
nothing to suggest Respondent wished to retaliate against Zarco
because of her past testimony. Moreover, while the questioning
might arguably permit an inference of animus toward Zarco’s
potential support of another employee in a dispute over his
discharge, it cannot support an inference of animus toward
Zarco’s past Board testimony. Accordingly, I find the General
Counsel failed to meet his Wright Line burden of establishing a
prima facie case that Respondent violated Section 8(a)(4) by
suspending and terminating Zarco because she testified at a
Board hearing.
My finding that the General Counsel has not made a prima
facie case of Section 8(a)(4) does not dispose of the allegations
concerning Zarco’s suspension and discharge. The following
questions remain: (1) Did Zarco’s action in preparing a letter
for Guadalupe Arteaga regarding Arturo Arteaga’s conduct
constitute protected concerted activity within the meaning of
Section 8(a)(1) of the Act? and (2) If so, did Respondent sus-
pend and terminate her because she did so?50
The Board has enunciated its “longstanding distinction” be-
tween concerted activity and mutual aid or protection, both of
which tests must be met in establishing Section 7 coverage.
Holling Press, Inc., 343 NLRB 301, 302 (2004). In Holling
Press, an employee of the company filed a claim of sexual
harassment against her supervisor, then appealed to coworkers
to give supportive evidence, for which she was fired. In dis-
missing the complaint, the Board concluded the employee’s
efforts to garner support, while concerted, were made only to
advance her personal issue. The Board stated that the element
of concertedness
[i]nclude[s] “circumstances in which individual employees
seek to initiate or to induce or to prepare for group action, [cit-
ing Mushroom Transportation v. NLRB, 330 F.2d 683 (3d
Cir. 1964)]” . . . and “activity which in its inception involves
only a speaker and a listener, for such activity is an indispen-
sable preliminary step to employee self-organization,” so long
as what is being articulated goes beyond mere griping. [Cit-
ing Meyers Industries, 281 NLRB 882 (1986).]
The “mutual aid or protection” element, however, requires that
the activity engaged in “benefit the group,” [not] advance [an
employee’s] personal case . . . [and is shown when] the group
of employees ha[ve] a common interest in the subject matter.”
Holling Press, Inc., 343 NLRB at 303.
Applying Holling Press, it is clear Guadalupe Arteaga was
engaged in activity, which, though “concerted,” did not consti-
tute “mutual aid or protection” when he solicited coworker
statements in an effort to bolster his unlawful discharge claim.
But it is not Guadalupe’s activity that is at issue but Zarco’s,
and Holling Press does not answer the question of whether

50 Although the General Counsel did not allege Zarco’s suspension
and termination independently violated Sec. 8(a)(1) of the Act, the
employment actions were fully litigated, and Respondent would clearly
have presented the same defense to an 8(a)(1) theory of violation as it
did to the 8(a)(4) allegation. Accordingly, it is appropriate to consider
whether Zarco’s suspension and termination independently violated
Sec. 8(a)(1) of the Act. MEMC Electronic Materials, Inc., 342 NLRB
1172, 1178 (2004).
employees who support another employee in an employment
dispute are thereby engaged in concerted activity for mutual aid
or protection. The Board has, however, had occasion to rule on
analogous activity. In Cadbury Beverages, Inc.,51 one em-
ployee cautioned another against representation by an as-
sertedly untrustworthy individual. The Board concluded that
the employee’s caution constituted protected concerted ac-
tivities on behalf of another employee, and the employer
violated Section 8(a)(1) of the Act by suspending him be-
cause of it. Extending Cadbury to Zorca’s situation, I find
that when she wrote a supportive letter for Guadalupe
Arteaga, she engaged in concerted activity in aid and protec-
tion of a fellow employee, thus meeting both requirements
of Section 7 coverage. Adverse employment action taken to
quell or to interfere with her protected activity would consti-
tute a violation of Section 8(a)(1) of the Act.
Having determined that Zarco’s action in preparing a letter
for Guadalupe Arteaga regarding his supervisor’s conduct con-
stituted concerted, protected activity within the meaning of
Section 8(a)(1) of the Act, it remains to determine whether
Respondent suspended and terminated Zarco because she en-
gaged in the protected concerted activity.
Respondent contends it did not terminate Zarco because of
any protected activity. Rather, Respondent argues, it did so in
compliance with the requirements of the Immigration Reform
and Control Act of 1986 (IRCA), upon suspecting, in good
faith, that Zarco’s work permit was based on false information.
IRCA’s prohibitions have been enunciated by the Supreme
Court:
[I]f an employer unknowingly hires an unauthorized alien, or
if the alien becomes unauthorized while employed, the em-
ployer is compelled to discharge the worker upon discov-
ery of the worker’s undocumented status. § 1324a(a)(2).
Employers who violate IRCA are punished by civil fines,
1324a(e)(4)(A), and may be subject to criminal prosecu-
tion, 1324a(f)(1). IRCA also makes it a crime for an unau-
thorized alien to subvert the employer verification system
by tendering fraudulent documents. 1324c(a). It thus
prohibits aliens from using or attempting to use “any
forged, counterfeit, altered, or falsely made document” or
“any document lawfully issued to or with respect to a per-
son other than the possessor” for purposes of obtaining
employment in the United States. §§ 1324c(a)(1)–(3).
Aliens who use or attempt to use such documents are sub-
ject to fines and criminal prosecution. 18 U.S.C. §
1546(b).52
Clearly, Respondent was responsible for seeing that Zarco
possessed acceptable documentation of authorization for em-
ployment in the United States. Whether Respondent was re-

51 324 NLRB 1213 (1997), enfd. 333 U.S. App. D.C. 94 (D.C. Cir.
1998).
52 Hoffman Plastic Compounds, Inc. v. NLRB, 535 U.S. 137, 145
(2002); see also Collins Food International v. U.S. Immigration &
Naturalization Service, 948 F.2d 549 (9th Cir. 1991); and Mester Mfg.
Co., v. I.N.S., 879 F.2d 561 (9th Cir. 1989).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1158
quired to act upon its suspicion that Zarco’s documentation
(which had passed INS muster) was premised on inaccurate
information is not so clear. Counsel for the General Counsel
argues Respondent bore no such responsibility, pointing out
that INS regulations “expressly allow Employers to rely on
documents which on their face appear to be valid and relate to
the person for whom they are issued”53 and that Elioff “never
thought [Zarco’s work permit] was a fake document.” In short,
counsel for the General Counsel appears to assert that Respon-
dent is not only justified in turning a blind eye to possible
documentation fraud but that Respondent’s failure to do so
signals pretextuality. Respondent, on the other hand, contends
that “[o]nce Maria Zarco . . . informed [Respondent] that she
was not lawfully authorized to work in the United States, be-
cause she had ‘fixed’ her paperwork, it had no choice but to
terminate her or allow her to resign.” Respondent offers no
authority for this broad assertion, and its legal validity may be
questionable. However, given the statutory and case authority
regarding an employer’s burden of compliance under IRCA, I
find it was not unreasonable for Elioff, and presumably Re-
spondent’s corporate counsel whom she consulted, to conclude
the company might risk civil and/or criminal liability by retain-
ing an employee who they believed had deceptively obtained
work authorization.
My finding that Respondent’s concern with Zarco’s immi-
gration status was not so inconsequential as to constitute pre-
textuality does not, of course, end the inquiry. It remains to
determine whether Respondent’s suspension and termination of
Zarco was motivated by validly held concerns or whether Re-
spondent seized on suspected documentation improprieties to
rid itself of an individual whose protected activity it disliked.
As the Board, quoting J. P. Stevens & Co. v. NLRB, 638
F.2d 676, 681 (4th Cir. 1981), noted, “the mere presence of
legitimate business reasons for disciplining or discharging
an employee does not automatically preclude the finding of
discrimination.” KOFY TV-20, 332 NLRB 771, 772 (2000).
I have found that Elioff did not, as claimed, tell Zarco on
January 13, that people who helped Guadalupe were going to
end up in trouble. A direct threat is not, of course, the only
method of proving that adverse employment action is unlawful.
The timing of Elioff’s meeting with Zarco, coming as it did
almost immediately after Magana, in the presence of Manuel
Arteaga, questioned Zarco about whether she would support
Guadalupe Arteaga, creates at least a remote suspicion that
Respondent’s ensuing suspension and termination of Zarco was
unlawfully motivated. However, a number of facts militate
against such a conclusion. First, there is no evidence anyone
reported to Elioff the substance of Magana and Manuel
Arteaga’s conversation with Zarco, and Zarco gave Elioff no
indication she planned to write a letter for Guadalupe. Second,
there is no evidence that Respondent bore animosity toward
employee support of Guadalupe. Third, there is no evidence
that Elioff deviated from normal practice in reviewing Zarco’s
work documentation. While Dominguez may have, inadver-
tently or otherwise, overlooked a discrepancy between the

53 Citing Handbook for Employers Instructions for Completing Form
I-9 (Employment Verification Form), p. 8.
country of origin identified on Zarco’s work permit and the one
tacitly acknowledged in the workplace, there is no showing
Elioff ever did so. Fourth, there is no evidence Elioff ever
accommodated or overlooked any work permit inconsistency,
so as to permit an inference that she treated Zarco disparately.
Fifth, Elioff gave Zarco ample time to rectify any misunder-
standing about her work permit or to verify its accuracy, which
is inconsistent with a “rush to judgment” that can herald ani-
mus.54
Upon Elioff’s inquiry into the accuracy of her work permit,
Zarco did little to alleviate Elioff’s concerns. The General
Counsel argues, essentially, that Respondent’s failure to take
steps to ascertain the accuracy of Zarco’s work permit demon-
strates animus.55 I cannot agree. Respondent had no duty to
establish the validity of Zarco’s work permit; that burden, as
well as access to authenticating information, belonged to Zarco.
Since Zarco knew Elioff doubted Guatemala was her country of
origin, it is reasonable to expect Zarco would have explored the
issue with Elioff immediately or at least defended the veracity
of the permit if she believed it to be accurate. Elioff gave
Zarco a week to straighten out the perceived “error” in her
work permit. There was nothing to prevent Zarco from present-
ing substantiating evidence to Elioff to establish that no error
existed in the work permit. Zarco did not do so. Rather she
obtained a letter from Salas that did not address the accuracy of
the information. Even after Elioff declined to accept Salas’
letter as resolving the problem, she gave Zarco additional time
to resolve the problem, which Zarco did not utilize. Zarco’s
unresponsiveness in the face of a patent threat to her employ-
ment could rationally be viewed by Respondent as confirmation
that a problem with the work permit existed. In light of Re-
spondent’s reasonable belief that the integrity of Zarco’s docu-
mentation was compromised, it is irrelevant that, as counsel for
the General Counsel points out, Zarco’s 10-year performance
record is unblemished. While such evidence may counterbal-
ance alleged misconduct, it is unavailing as a defense to im-
proper alien work authorization documentation.
In sum, the evidence compels a conclusion that Respondent
suspended and thereafter terminated Zarco because of per-
ceived inaccuracy in her work permit and not because she en-
gaged in protected concerted activity.
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce and in a
business affecting commerce within the meaning of Section
2(6) and (7) of the Act.
2. The Union is a labor organization within the meaning of
Section 2(5) of the Act.
3. Respondent violated Section 8(a)(1) of the Act by
(a) Interrogating employees about their or other employees’
protected concerted activities.
(b) Asking employees to report to management the protected
concerted activities of other employees.
(c) Creating the impression of surveillance of employees’

54 See Caesar’s Atlantic City, 344 NLRB 984 (2005).
55 Actions the General Counsel suggests Respondent should have
taken include contacting the BCIS, asking Zarco for documents such as
birth certificate or passport, and inquiring into family relationships.
INTERNATIONAL BAKING CO. & EARTHGRAINS 1159
union activities.
(d) Impliedly threatening employees with reprisals if they
continue to engage in union or other protected activities.
(e) Equating voting for the Union with disloyalty to Respon-
dent.
(f) Warning an employee not to invite other employees to a
union meeting.
(g) Attributing possible outsourcing of work to employees’
union or other protected concerted activities.
(h) Impliedly promising to continue a flexible discipline pol-
icy if employees reject the Union.
(i) Impliedly threatening employees with a strict discipline
policy if employees select the Union.
4. The unfair labor practices set forth above affect com-
merce within the meaning of Section 8(a)(1) and Section 2(6)
and (7) of the Act.
REMEDY
Having found that Respondent has engaged in certain unfair
labor practices, I find it must be ordered to cease and desist and
to take certain affirmative action designed to effectuate the
policies of the Act.
[Recommended Order omitted from publication.]